Bradley, R v [2005] EWCA Crim 20

Case No 200407169/C3[2005] EWCA Crim 20
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 14th January 2005
Strand
London, WC2
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MR JUSTICE MITTING
MR JUSTICE WALKER
Between
R E G I N ACrown-v-
Between
DAVID BENJAMIN BRADLEY
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR R BROOMFIELD appeared for APPELLANTMR R HORWELL & MR R WOODCOCK appeared for CROWN
J U D G M E N T
[1]THE VICE PRESIDENT: This appeal, brought with the certificate of the trial judge, has been heard urgently because it raises a short, difficult and important point of construction of Part 11 of the Criminal Justice Act 2003, which is of potential significance in a large number of current or pending trials in Crown Courts and Magistrates' Courts.[2]Each member of this Court has contributed to this judgment.[3]The provisions of sections 98 to 110 and 112 of the Act, in relation to evidence of bad character, were brought into force on 15th December 2004. The question is as to whether those provisions apply in all trials beginning on or after that date, or only in those in relation to which proceedings began on or after that date.[4]The circumstances of the present case are that on 17th December 2004, at Newcastle-upon-Tyne Crown Court, following a trial before His Honour Judge Faulks, which began on the afternoon of 15th December, the appellant was convicted of robbery, on count 1, and having an imitation firearm with intent, on count 2. He was sentenced to life imprisonment concurrently on each count, and the judge recommended that he serve a term of just over four-and-a-half years' imprisonment.[5]The trial judge's certificate for appeal against conviction was on the ground that:
"There is doubt as to when the bad character provisions of the Criminal Justice Act 2003 come into effect."
[6]The facts in relation to this case are that on 21st June 2004, shortly after 5.30 pm, two men, wearing stocking masks, entered a bookmakers, armed with an imitation firearm and stole a quantity of money. On departing, one of the robbers dropped his stocking mask. A full DNA profile was recovered from that part of it where the man's mouth would have been had he worn it as a mask. That profile matched the appellant's DNA profile. The appellant was arrested and interviewed on 8th July 2004. He denied involvement but was charged the same day. In a defence statement, at the end of September, he gave details of an alibi and, at his trial, he gave evidence relying upon that alibi.[7]He advanced an explanation for the presence of his DNA on the mask, on the basis that someone else might have picked up a dirty pair of tights on which he had spat, while using them for polishing cars. Thereafter, whoever it was who had picked up the tights, had used them as a mask. He called scientific evidence to demonstrate that the mask might have been worn by some other person without that person leaving on it material from which a DNA profile could be obtained.[8]The judge admitted, in evidence, under section 101(1)(d) of the Criminal Justice Act 2003, as being relevant to an important matter in issue between the defendant and the prosecution, the appellant's previous conviction on 7th September 2000, for an offence of robbery, committed on 26th December 1999.[9]Two grounds of appeal challenge that ruling. It is said, first, that the judge erred in concluding that evidence of that previous conviction was admissible, and secondly, that he was wrong to rule that criminal proceedings, as defined by section 112(1) of the Act should properly be interpreted, so as to mean "trial": section 141 of the Act only operated so as to prohibit any of the provisions of Part 11 of the Act from having effect in relation to trials begun before the commencement of those provisions.[10]In order to focus on the problem which arises from the statute, we turn, first, to the relevant legislative provisions. Part 11 of the Criminal Justice Act 2003 enacts new rules for certain categories of evidence in criminal cases. Chapter 1 deals with evidence of bad character; chapter 2 with hearsay evidence; and chapter 3 with miscellaneous and supplemental matters.[11]In chapter 1, section 98 defines "bad character". Section 99(1) abolishes the common law rules governing admissibility of evidence of bad character. Section 100 lays down the circumstances in which evidence of bad character of a person other than the defendant is admissible. Sections 101 - 108 deal with the admission of evidence of a defendant's bad character. Section 101(1) provides:
"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 intending 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."
Section 101(3) requires the court not to 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."[12]Sections 102 - 106 define the circumstances in which evidence of bad character is admissible under subsections 101(1)(c) to (g). The most radical change to the rules governing admissibility at common law and in section 1 of the Criminal Evidence Act 1898 is effected by section 103(1), which provides:
"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."
Section 107 requires the court to direct a jury to acquit the defendant of an offence or discharge the jury and order a retrial when it is satisfied at any time after the close of the case for the prosecution that evidence of bad character admitted under section 101(1)(c)-(g) is contaminated and that the contamination is such that his conviction would be unsafe.[13]Section 111 provides for rules of court to be made specifying, amongst other matters, the notices which each party must give if he intends to rely on any provisions of chapter 1 part 11.[14]Section 112(1) is the interpretation section for chapter 1. It defines "criminal proceedings" as "criminal proceedings in relation to which the strict rules of evidence apply." It also defines "defendant" and "co-defendant": "defendant", in relation to criminal proceedings, means a person charged with an offence in those proceedings; and "co-defendant", in relation to a defendant, means a person charged with an offence in the same proceedings.[15]Section 113 and schedule 6 apply Part 1 to proceedings before service courts.[16]Chapter 2 enacts a new code for hearsay evidence. It, too, applies to "criminal proceedings" as defined in section 112(1): see section 134(1).[17]Chapter 3 enlarges the circumstances in which evidence may be given by video recording and specifies the circumstances in which documents may be used to refresh memory by a person giving oral evidence. It, too, applies to "criminal proceedings" as defined in section 112(1): see section 140.[18]The last section in Part 11, chapter 3, is section 141 which states:
"No provision of this part has effect in relation to criminal proceedings begun before the commencement of that provision."
[19]The rule-making provision in section 111 was brought into effect on 21st January 2004 by the Criminal Justice Act 2003 (Commencement No 2 and Transitional Provisions) Order 2004. Sections 139 - 141 were brought into effect on 5th April 2004 by the Criminal Justice Act 2003 (Commencement No 3 and Transitional Provisions) Order 2004. Sections 98 - 110 and 112 were brought into effect on 15th December 2004 by the Criminal Justice Act 2003 (Commencement No 6 and Transitional Provisions) Order 2004. The same statutory instruments repealed section 1(3) of the Criminal Evidence Act 1898. It is to be noted, in passing, that despite the expectations raised by their titles, the statutory instruments contained no transitional provisions.[20]Whether the new rules governing the admissibility of evidence of bad character can apply depends on the meanings of the words in section 141:
"Criminal proceedings begun before the commencement of that provision."
Two rival contentions are advanced before us. They are foreshadowed in paragraphs 46 - 49 of a paper prepared for the Judicial Studies Board in November 2004, by the distinguished academic criminal lawyer Professor J R Spencer QC to which the trial judge was referred. For the appellant, it is said that the new provisions apply to criminal proceedings begun by the laying of a charge or information on a after 15th December 2004. For the respondent, it is said that they apply to all trials and Newton (77 Cr App R 13) hearings begun on a after 15th December 2004. It is apparent that Parliament, had it chosen to do so, could have made its intention crystal clear by very simple language.[21]For the appellant, Mr Bloomfield submits:(i) "Criminal proceedings" in section 141 has an autonomous meaning, not governed by the qualifying words "in relation to which the strict rules of evidence apply" in sections 112(1), 134(1) and 140.(ii) In any event, if applied to section 141 those words simply define the category of proceedings. All that they do is to state the obvious: that in relation to criminal proceedings which result in a trial or Newton hearing, the strict rules of evidence apply to those parts of the proceedings. They may have been intended to make it clear that Part 11 is not concerned with proceedings which are not categorised as criminal under domestic law but would be so categorised for the purposes of the European Convention on Human Rights.(iii) In either event, "criminal proceedings" begin with the laying of a charge or information.(iv) The rules prescribed by the Crown Court (Amendment No 3) Rules 2004, which also came into force on 15th December, require parties to give notice of their intention to rely upon the new bad character provisions by reference to a timetable, triggered by earlier steps in the proceedings, for example, committal or sending for trial under section 51 of the Crime and Disorder Act 1998 (see Article 3(3)(a)(d)), all of which occurred before the commencement of the new bad character provisions.(v) Because the appellant was charged before 15th December, the new provisions could not have applied to him, even though his trial started on that date.[22]Mr Horwell, for the Crown, submits that:(i) "Criminal proceedings" in section 141 has the same meaning as the same phrase in sections 112(1), 134(1) and 140.(ii) The words "criminal proceedings" in relation to which the strict rules of evidence apply, denote, and denote only, those parts of criminal proceedings to which those rules apply, namely trials.(iii) In consequence, if such a part of the proceedings is begun after 15th December, new provisions can apply to it, and by reason of the commencement order do apply to it.(iv) Any other conclusion would produce unacceptable and unmanageable consequences in many cases: notably, those in which co-defendants, some charged before, and some after 15th December are tried together; and those in which a single defendant is tried, at the same hearing, for offences charged before and after that date.[23]Mr Horwell referred us to a ruling in relation to use of documents to refresh memory, under section 139 in chapter 3, by Sir Stephen Mitchell, in a case presently proceeding at the Central Criminal Court, which supports his submission.[24]In the light of these submissions, we turn to our conclusions. Part 11 of the 2003 Act is procedural. It does not alter the substantive law, only the rules as to the evidence by which guilt may be proved. The starting point for considering from what date the new provisions apply is, therefore, that which relates to procedural provisions. In R v Makanjuola (1995) 2 Cr App R 469 at 472 A - B, Lord Taylor of Gosforth CJ said:
"The general rule against the retrospective operation of statutes does not apply to procedural provisions (see Bennion, Statutory Interpretation (2nd ed), p 218 and the cases there cited. Indeed, a general presumption is that a statutory change in procedure applies to pending as well as future proceedings."
[25]Section 141 departs from that general presumption, by providing that no provision in Part 11 has effect in relation to criminal proceedings begun before commencement of that provision. The question is as to the extent of that departure. Does it mean simply that, on the commencement date, if a part of the proceedings to which strict rules of evidence apply is under way, the new provisions cannot be made applicable? Or does it mean that the new provisions are out of bounds for all "proceedings" begun by charge or information before the commencement date? In resolving those questions, we approach the matter by looking at the practical effect of the rival contentions. To the extent that those effects might produce apparently unfair or impractical results, the more it is to be expected that, if Parliament were legislating to that end, it would have made its intention clear. It is to be noted in this regard that Mr Bloomfield does not contend that section 3(1) of the Human Rights Act 1998 requires that the words in section 141 be read as he construes them.[26]In our view "criminal proceedings" in section 141 has the same meaning as "criminal proceedings" in sections 112 (1), 134(1) and 140 for several reasons.[27]Section 140 expressly defines "criminal proceedings" in chapter 3. Section 141 appears in chapter 3, albeit immediately after the interpretation section. The heading of chapter 3 is "miscellaneous and supplemental". Section 141 falls under that heading. It is to be assumed that when the draftsman expressly defined "criminal proceedings" for miscellaneous and supplemental purposes, a provision enacted for such a purpose, contained in the same section, should have the same meaning.[28]As is said in Bennion on statutory interpretation (fourth edition, page 995):
"It is presumed that a word or phrase is not to be taken as having different meanings within the same instrument unless this fact is made clear. Where therefore the context makes it clear that a term has a particular meaning in one place, it will be taken to have that meaning elsewhere."
It would be remarkable if a phrase repeatedly used throughout Part 11 had a different meaning in one miscellaneous or supplemental provision of Part 11.[29]The researches of counsel and the knowledge of the members of this Court do not reveal any prior use in a criminal statute of the words "criminal proceedings in relation to which the strict rules of evidence apply." Their immediate origin appears to be clause 17(1) of the draft Bill accompanying the Report of the Law Commission on "Evidence of bad character in criminal proceedings" (no 273). Paragraph 17.23 of that report reads:
"We recommend that the above rule should apply where the criminal rules of evidence currently apply, namely in Courts-Martial, Summary Appeal Courts, the Court-Martial Appeal Court and standing Civilian Courts, and in Naval Disciplinary Courts and professional tribunals established by Statute, but should not affect Coroners' Courts."
In clause 21(3) of the draft bill appended to the report, the Commission proposed that those provisions should not apply "in relation to a hearing begun before the day appointed for the purposes of that provision...." It seems to us that the Law Commission use the words, "to which the strict rules of evidence apply" in order to ensure that the changes affected only those parts of criminal proceedings to which such rules applied.[30]No assistance is to be derived from Hansard or any other not preliminary material, apart possibly from the press notice to which we shall refer later. Faced with the two alternative constructions, and intent on a purposive approach, we can see good reason for modifying the common law rule so that, on the commencement date, if a part of the proceedings to which the strict rules of evidence apply is under way, (ie the trial has started) then the new provisions cannot be made applicable. It makes sense that the rules should not change part way through a hearing, and this is clearly what the Law Commission had in mind. We can see no good reason for the new provisions to be out of bounds merely because a charge or information was laid prior to the commencement date. The answer to Mr Bloomfield's ECHR point is that the Act only applies to criminal proceedings, categorised as such in domestic law.[31]The reference to "a defendant's trial before a judge and jury" in section 107(1) (and an analogous reference in section 125) does not, in our view, indicate that the draftsman would have referred to a "trial" rather than "criminal proceedings" in the remainder of Part 11 (including section 141) if it had been intended that the new provisions should only apply to trials begun after the commencement date. The specific reference to a trial "before judge and jury" in section 107 is intended to make it clear that the obligation to direct an acquittal or discharge a jury, only arises on a trial on indictment and not on a trial in a Magistrates' Court or on a Newton hearing.[32]The fact that the notice regime laid down by the Crown Court (Amendment No 3) Rules 2004 will ordinarily operate by reference to a step in the proceedings taken before the commencement of a trial or Newton hearing, does not require that it must invariably do so. Rule 3(7) provides:
"The Crown Court may- (a) allow a notice or application required under this rule to be given in a different form, or orally; or (b) shorten a time limit under this rule or extend it even after it is expired, if it is the interests of justice to do so."
That is what the judge did in this case and the exercise of his discretion, if he had one, is not challenged.[33]If the appellant's contention is right, very great difficulties would arise. We give three examples: 1) Joint trials of two or more defendants, at least one of whom was charged before and one after 15th December 2004, would have to be conducted under different rules of evidence, not only as between the Crown and the defendants, but as between defendants. 2) Different rules of evidence would apply in a trial against a single defendant charged, before and after 15th December, with separate offences tried to together. 3) Judges would have to apply what would, by then, be old and increasingly unfamiliar rules of evidence in cases remitted for re-trial, after a conviction at a trial conducted under the old rules had been quashed by this Court.[34]For all these reasons, we are persuaded that the intention of Parliament, in enacting Part 11, including section 141, was that the new provisions should be applied to all trials and Newton hearings begun after the commencement of the relevant provision. It follows that the judge was right to rule that Part 11 applied; and that the defendant's previous conviction for robbery was admissible.[35]We should add that we were referred to, but have derived no assistance from two other matters: 1) the decision of the Court of Appeal (Civil Division) in Bairstow v Queens Moat Houses Plc [1998] 1 All ER 343 and 2) Home Office press release on 15th December 2004.[36]In Bairstow, the Court had to determine the date by reference to which the Civil Evidence Act 1995 had effect. Section 11 provided:
"In this Act 'civil proceedings' means civil proceedings before any tribunal, in relation to which the strict rules of evidence apply...."
Section 16(3) provides that:
"the provisions of this Act shall not apply in relation to proceedings begun before commencement."
No argument was addressed to this Court to the effect that "civil proceedings... in relation to which the strict rules of evidence apply" meant a trial or hearing to which those rules applied. The reason may be that civil proceedings come in many guises. Strict rules of evidence do not apply to all of them. Consequently, the qualifying words do no more than make it plain that the civil proceedings, to which the 1995 Act was to apply, were of the category in which the strict rules of evidence applied. By contrast, the strict rules of evidence apply to certain categories of hearing - trials and Newton hearings - in all criminal proceedings. There is no category of "criminal proceedings", treated as a whole, to which the strict rules of evidence do not apply. They do not apply to certain proceedings within a case - for example, applications for bail and sentencing. In the context of criminal proceedings, the qualifying words, if they mean anything, can only sensibly apply to those parts of the proceedings to which the strict rules apply.[37]The Home Office press notice records a statement by Baroness Scotland, which does not refer to the date by reference to which the new rules are to apply. The "notes to editors" below her statement, state in paragraph 3:
"The provisions will cover all types of offences and will apply to all cases in which charges are laid on or after 15th December."
The day on which such a note becomes an available tool of statutory construction has not yet arrived. But the terms of that notice prompt us to make some more general observations.[38]It is in the public interest that the criminal law and its procedures, so far as possible, be clear and straightforward so that all those directly affected, in particular, defendants, victims, the police, the probation service, jurors, lawyers for defence or prosecution, judges and magistrates, professional and lay, should be readily able to understand it. Sadly the provisions of the Criminal Justice Act 2003, which we have had to consider on this appeal, are, as is apparent, conspicuously unclear in circumstance where clarity could easily have been achieved. It is not this Court's function to identify whether the government, Parliament or Parliamentary draftsmen are responsible for this perplexing legislation. It is this Court's duty loyally to glean from the statutory language, if it can, Parliament's intention and this we have sought to do in the face of obfuscatory language. The public is entitled to know of the difficulties which such legislation creates for all concerned. The point is graphically highlighted in the present case, because the Crown have advanced to this Court a construction of the statute which is completely contrary to that suggested by the Home Office press release on the day the provisions came into force.[39]It is more than a decade since the late Lord Taylor of Gosforth CJ called for a reduction in the torrent of legislation affecting criminal justice. Regrettably, that call has gone unheeded by successive governments. Indeed, the quantity of such legislation has increased and its quality has, if anything, diminished. The 2003 Act has 339 sections and 38 schedules and runs to 453 pages. It is, in pre-metric terms, an inch thick. The provisions which we have considered have been brought into force prematurely, before appropriate training could be given by the Judicial Studies Board or otherwise to approximately 2,000 Crown Court and Supreme Court judges and 30,000 magistrates. In the meantime, the judiciary and, no doubt, the many criminal justice agencies for which this Court cannot speak, must, in the phrase familiar during the Second World War "make do and mend". That is what we have been obliged to do in the present appeal and it has been an unsatisfactory activity, wasteful of scarce resources in public money and judicial time.[40]For the reasons which we have given, this appeal is dismissed.[41]MR BLOOMFIELD: I have two applications which follow on from that. The first is that I invite your Lordships to certify a point of law of public importance, and my Lord if your Lordships accede to that, I would ask your Lordships for leave to take this matter to the House of Lords.[42]THE VICE PRESIDENT: What is the point of law of general public importance?[43]MR BLOOMFIELD: Can I apologise...[44]THE VICE PRESIDENT: Has Mr Horwell seen it?[45]MR BLOOMFIELD: It encapsulates the point. I did not expect to be in London overnight. I do not have the facilities to print out, I am afraid. Perhaps I could read it into the record?[46]THE VICE PRESIDENT: You do not need to bother with that.[47]MR BLOOMFIELD: What I sought to do in that question is ask this question: does section 141 have the same meaning as the other three sections. If it does, what it is. I hope the As and Bs I have identified properly reflect it being totally words, the submission of the parties in the proceedings before this Court. Your Lordship has the point, your Lordship knows the significance, importance of potential urgency of this matter. My Lord, I cannot take the matter any further. Your Lordship have my submissions lengthy as so.[48]THE VICE PRESIDENT: Mr Horwell, do you want to say anything about that?[49]MR HORWELL: No. (The Bench Conferred)[50]THE VICE PRESIDENT: We certify the question but we refuse leave. Perhaps I had better read the question out. Not everybody has seen it:
"Whether the phrase 'criminal proceedings' in section 141 of the Criminal Justice Act 2003 has the same meaning as 'criminal proceedings' as defined by sections 112(1), 134(1) and 140 of the Act and, if so, whether it means: (a) that part within the criminal process comprising trials within which disputed issues of fact are resolved; or (b) criminal proceedings from the charging of the accused or laying of an information until determination of all disputed facts."

Cited in 7 later judgments