Edwards & Anor, R. v [2005] EWCA Crim 3244

Case No 2005/2498/C2, 2541/C2, 4150/B1, 3045/C4, 1544/D4, 2385/D4

[2005] EWCA Crim 3244

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT IPSWICH

(Judge Newton)

ON APPEAL FROM THE CROWN COURT AT TAUNTON

(Judge Hume Jones)

ON APPEAL FROM THE CROWN COURT AT NEWPORT

ISLE OF WIGHT (Sitting at Portsmouth)

(Judge Hetherington)

ON APPEAL FROM THE CROWN COURT AT LUTON

(Judge Foster)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Wednesday, 21 st December 2005

Before

LORD JUSTICE SCOTT BAKER

MR JUSTICE GROSS

MR JUSTICE RAMSEY

Between

The QueenRespondent

Stewart Dean Edwards and Tony RowlandsAppellant

The QueenRespondent

Michael McLeanAppellant

The QueenRespondent

David Reginald SmithAppellant

The QueenRespondent

Kevin James Enright and Rosalind GrayAppellant

(Transcript of the Handed Down Judgment of

Smith Bernal WordWave Limited

190 Fleet Street, London EC4A 2AG

Tel No: 020 7421 4040 Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Miss K Davey for Edwards.

Mr M Roochove for Rowlands.

Mr A Shaw for Crown in Edwards and Rowlands.

Mr J Stanniland for Mclean.

Miss L Matthews for Crown in McLean.

Mr T Moores for Smith.

Mr S Foster for Crown in Smith.

Mr I Wade for Enright.

for Gray did not appear and was not represented.

Miss J Weeks for Crown in Enright and Gray.

Judgment

[1]We heard these appeals consecutively on 25 November 2005. Since each of the conviction appeals raises issues relating to the bad character provisions in sections 98 to 112 of the Criminal Justice Act 2003 we are giving one judgment dealing with all four cases. Before turning to the individual cases we wish to make one or two general observations that have occurred to us when considering these appeals. i) Often the first enquiry is whether it is necessary to go through the “bad character” gateways at all. In this regard, section 98 is not to be overlooked. It excludes from the definition of bad character evidence which “has to do with the alleged facts of the offence” or evidence “of misconduct in connection with the investigation or prosecution of that offence”. While difficult questions can arise as to whether evidence of background or motive falls to be admitted under those exclusions in section 98 or requires consideration under section 101(1)(c), it does not follow that merely because the evidence fails to come within the section 101 gateways it will be inadmissible. Where the exclusions in section 98 are applicable the evidence will be admissible without more ado. ii) Applications to admit bad character evidence may well arise at an early stage giving rise to real difficulty for the trial judge. Some applications e.g. under section 101(1)(b) cannot be refused; others, for instance brought under section 101(1)(e) may well be difficult to refuse (of which more in a moment).The parties would be well advised to reflect, at the time of the application, as to the use to which such evidence is likely to be put and be in a position to assist the judge in this regard. There can be difficulties for the judge in summing up when bad character evidence that has been admitted turns out, for whatever reason, to have only marginal relevance to the issues before the jury. iii) Under the new regime it is apparent that Parliament intended that evidence of bad character would be put before juries more frequently than had hitherto been the case. The judge’s role is to determine admissibility under the statutory gateways and any questions of exclusion, for example under sections 101(3), 103(3) or section 78 of the Police and Criminal Evidence Act 1984. Once evidence of bad character is admitted (and not excluded) questions of weight are for the jury, subject to:(a) the judge’s powers under 107 (stopping the case where the evidence is contaminated) and

(b) the judge’s direction as to relevance and to other matters, as to which see R v Hanson

[2005] 2 Cr App R 21

, para 18 and R v Highton

[2005] 1 WLR 3472

para 11. iv) Where evidence of bad character is admitted, the judge’s direction is likely to be of the first importance. It will need to cover the matters canvassed in Hanson and Highton. It may also need to pull threads together on an issue where the ground may have shifted considerably since the evidence was admitted. In an appropriate case, the judge’s direction may need to underline that given the course taken by the trial, the evidence of bad character is by then of very little weight indeed. v) Simply because an application to admit evidence of bad character is made by a co-defendant, the judge is not bound to admit it. The gateway in section 101(1)(e) must be gone through. Sections 101(1)(d) and (e) give rise to different considerations. In determining an application under 101(1)(e) analysis with a fine tooth comb is unlikely to be helpful; it is the context of the case as a whole that matters. Section 112 makes this clear by its definition of what amounts to an important matter in issue. vi) There are a number of other points about the position of co-defendants: (a) the gateways under sections 101(1)(d), (f) and (g) are not open to them as only prosecution evidence, as defined in section 112, is admissible: see sections 103(6), 105(7) and 106(3). (b) section 104(1) is not exhaustive of the scope of section 101(1)(e). It limits evidence relevant to a defendant’s propensity to be untruthful.

(c) whether a defendant’s stance amounts to no more than a denial of participation (see R v Varley 75 Cr App R 24), or gives rise to an important matter in issue between a defendant and a co-defendant will inevitably turn on the facts of the individual case. vii) Whilst we note the observation of the Vice-President in R v Bovell

[2005] 2 Cr App R 27

para 21 that the court entertained considerable doubt whether the mere making of an allegation is capable of being evidence within 100(1), we are persuaded that it so capable, at any rate when considering the effect of section 109 in relation to an issue under section 101(1)(d). This is an area, however, in which it is important to guard against satellite litigation (see Bovell para 22). Further, it is appropriate to proceed with caution and with due regard to the judge’s discretion to exclude evidence. viii) Finally we reiterate two points that have been made in the previous decisions of this court but which we think are worth repetition: (a) ‘admissibility’ and ‘use’ give rise to different questions; (b) The ‘feel’ of the trial judge is very important and this court will only interfere where the conviction is unsafe. Edwards and Rowlands.

[2]In this appeal the following sections of the Criminal Justice Act 2003 are referred to: sections 98, 101(1)(e), 101(1)(g), 101(3), 101(4), 104(1), 106.

[3]On 15 April 2005 both these appellants were convicted in the Crown Court at Ipswich before Judge Newton and a jury of conspiracy to supply a class A drug, ecstasy, and sentenced to ten years imprisonment. A charge of possessing ammunition without a certificate against Rowlands was severed from the indictment. A co-defendant, Mitchell, was found not guilty of conspiracy under section 17 of the Criminal Justice Act 1967.

[4]Rowlands appeals against conviction with the leave of the single judge, but leave was only given on one ground rather than all three. Both Edwards and Rowlands renew their applications for leave to appeal against sentence after refusal by the single judge. As Rowlands’ grounds of appeal against conviction are to an extent interlinked, we have granted leave on the remaining grounds.

[5]The facts of the case are as follows. At 12.45pm on 16 September 2004 Rowlands was observed by the police as he arrived at Edwards’ home address at 25 Collingwood Fields, East Bergholt appearing to remove something from the boot of his car. A few minutes later officers entered the house to execute a search warrant. Edwards, who was wheelchair bound following a serious road accident 6 weeks earlier, and his brother-in-law Rowlands, were both present at the house. Officers took possession of a vacuum sealed package which was found on top of a black bin liner on the cooker. A second similar sized package was recovered from Edwards’ bed in the lounge. The packages were found to contain a total of 10,190 ecstasy tablets. One of the packages contained Edwards’ fingerprints. Latex gloves, containing Edwards’ DNA and traces of ecstasy were also recovered along with £2,830 in cash.

[6]During the police search of the property a young man called Stewart Mitchell (the co-defendant who was found not guilty) entered the property and was arrested. A struggle ensued after he tried to grab the money and run away.

[7]It was the prosecution case that between 31 August and 16 September 2004 Rowlands and Edwards had participated in a conspiracy together and with unknown persons to supply ecstasy to another. In the alternative it was alleged that Edwards had the ecstasy in his possession with intent to supply it to another.

[8]It was the defence case on behalf of Edwards that the drugs were not his and that Rowlands had brought them with him after turning up unexpectedly on that day. He had wanted no involvement with the drugs and had told Rowlands to sort them out. Rowlands denied that he had brought the drugs with him and said they were not his; the drugs belonged to Edwards who was blaming him and just trying to “drop him in it”.

[9]Following Rowlands’ arrest, police conducted a search at his home in Reading and recovered an old American Remington Double Derringer pistol and an eight millimetre cartridge. The pistol was later determined an antique firearm for the purposes of section 58(2) of the Firearms Act 1968 and was accordingly free from the certification procedure. The cartridge, which was not suitable for use in the pistol, constituted ammunition under section 1 of the Act. Rowlands was accordingly charged with possessing ammunition without a firearm certificate. On the first day of the trial the Crown applied to add that charge to the indictment as a third count. The defence opposed the application on the basis that it could not be said to arise from the same facts as count 1 or form part of a series of offences of the same or similar character. The judge rejected the argument and allowed count three to be joined, but then subsequently ordered its severance.

[10]As to the police evidence P.C. Dyer said that he was sitting outside Edwards’ property when a man (accepted to be Rowlands) pulled up outside and appeared to remove something from the boot of his car. He then moved out of sight. PC Roberson raided the house with other officers after gaining entry with an enforcer. D.I. Pepper supervised the execution of the warrant. Given Edwards’ physical condition she took medical advice from a doctor, and the crown prosecution service, and he was interviewed at the scene. He said that the drugs were nothing to do with him and were down to his brother-in-law, Rowlands. A statement was read from PC Brown who said that he saw the vacuum packaged parcels and asked Rowlands for his home and mobile telephone numbers. He gave a home number but said that he did not have a mobile. He initially denied the one on the cabinet was his but then admitted it was. The Crown relied on mobile phone evidence in support of the conspiracy.

[11]When Rowlands was interviewed he answered “no comment” to all the questions put to him.

[12]Edwards’ defence was that he had dealt in cars since he was 18 years old. He found it easy to make money from car dealing but did not keep books. He said he had been involved in a very serious car accident on 4 August 2004 and had been discharged from hospital as recently as 25 August. The accident had affected him mentally although he was still able to carry out some activities. His doctor had prescribed Viagra to help his impotence but it was expensive and he started getting it from friends. Rowlands was married to his sister and they were very close. There had been more frequent contact since the accident. When Rowlands arrived on 16 September he was in the front room changing his dressings while wearing the latex gloves. Rowlands had a Sainsbury’s carrier bag with him. He pulled a package from the bag and asked Edwards to look at it. He took off his gloves and placed them on a black bag which was on the cooker. He knew the package was ecstasy as he had seen it before. He had used it around three to four years before at night clubs and pubs. He was annoyed and angry. There was a package on top of the cooker, but he did not see the one later recovered by the police at the top of the bed. He told Rowlands that he had to sort the ecstasy out as he did not want any involvement with it. Two minutes later the police came through the door. Of the £2,800 in cash found at the house he said that the £1,000 in the CD draw belonged to his girlfriend who had been saving up. They always kept cash at the property. He had received text messages from a friend about getting Viagra on the black market. He could not remember how he had held the Sainsbury’s bag or what part he had touched. He saw Rowlands and his sister after the day of the police raid and they told him that he, Edwards, was going to have to take the blame for what had been found.

[13]When cross-examined on behalf of Rowlands he denied that the drugs were his and had nothing to do with Rowlands. He accepted that he had bought and used drugs before. He admitted that he had been able to buy and sell Viagra. He had not tried to drop his brother-in-law in it and had looked up to him for many years. It was out of order for Rowlands to turn up with drugs unannounced and he would not have expected it. He agreed that it was completely out of character. He was used to dealing in cars and always had a lot of money in the house. A considerable quantity of character evidence was called on behalf of Edwards from family and friends who spoke highly of him. His business partner also spoke of their car dealing and of the seriousness of Edwards’ physical condition following his discharge from hospital. His girlfriend confirmed that £1,000 of the recovered money belonged to her.

[14]Rowlands said that he worked for a meat company and also did some part time work painting and decorating. He agreed that he was the person seen by PC Dyer on 16 September and said that had gone to the boot of the car as a golf ball had come out of his golf bag and was running around loose in the boot. It was admitted that a bag of golf clubs was found in the boot.

[15]On the day of the raid he had been working and went to see Edwards because he was concerned about his welfare. After sorting out the stray golf ball from his boot, he tapped on the door and went straight inside. He did not have any drugs in the carrier bag and was not a drug dealer. He did not know why Edwards was blaming him.

[16]This was therefore a cut throat defence. If the drugs did not belong to both Edwards and Rowlands they must have belonged to one or other of them. Edwards case was that his brother-in-law, a trusted friend, came to his house and without warning produced a large quantity of ecstasy. He pulled a package out and said, “look at this.” Edwards told him to remove it.

[17]Prior to the start of his cross-examination, counsel for Edwards sought to ask Rowlands about his bad character. This was supported by the Crown. He wished to cross-examine Rowlands about three matters:

“(i) his previous convictions; (ii) the live cartridge found at his home; and (iii) the antique firearm which, so it appears, was perfectly lawfully held by him.”

[18]The judge’s ruling was that he allowed cross-examination about the previous convictions and the cartridge. He said he did not prevent questioning on the firearm, but that it was a matter for counsel to deal with in the way they thought fit. Rowlands appeals on the following grounds. “(i) the judge was wrong to allow a co-defendant to cross examine him on his previous convictions pursuant to section 101(1)(e), as his defence did not undermine his co-defendant and his conviction for handling could not properly be regarded as evidence relevant to his propensity for truth. (ii) He was also wrong to allow cross-examination pursuant to section 101(1)(g) as only prosecution evidence is admissible under this gateway. Alternatively, the judge failed to exercise his discretion under sections 101(3) and 101(4) in respect of the length of time between the previous convictions and the offence for which he was being tried. (iii) The judge was wrong to rule that the cartridge and firearm found at his house was evidence of bad character as defined by section 98 and permit questioning thereon. The cartridge was the subject of a severed count and should therefore be properly regarded as evidence in connection with the alleged offence and or evidence of misconduct in connect with the investigation. The possession of an antique firearm is not a criminal offence and cannot be regarded as either evidence of disposition or misconduct. Alternatively, the cross-examination about the cartridge and firearm was more prejudicial then probative.” The single judge gave leave on the third ground, but refused leave on the first two.

[19]Rowlands previous convictions comprised the following:• criminal damage in 1983, for which he was fined;

• handling in 1992, for which he was fined £50;

• criminal damage in 1993 for which he was conditionally discharged for 12 months;

• religiously aggravated harassment in 2004 for which he was fined.

[20]All Rowlands’ previous convictions were put before the jury by his co-defendant in cross-examination. He was not cross-examined on them by the Crown. It is difficult to see how any of them could possibly have had any relevance in the case except possibly the handling to which we shall return in a moment.

[21]The position about the gun and the cartridge was that Rowlands admitted possession of them. They were in a shoe box. He said he had found them when digging in the garden. This was not disputed by the Crown.

[22]We take first ground 3. Section 98 provides:

“References in this Chapter to evidence of a person’s “bad character” are to evidence of, or a disposition towards, misconduct on his part, other then 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 defence.” (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 defence.”

[23]It is difficult to see how evidence of lawful possession of an antique firearm can amount to evidence of, or a disposition towards, misconduct. The judge did not prevent questioning on it, but doubted its relevance. In our view it was not evidence of bad character and therefore no question of admissibility under section 101 arose. As to the cartridge, Mr Roochove, for Rowlands, submits that it comes within either subsection 98(a) or (b) and thus does not fall for consideration under section 101. As Ramsey J pointed out in argument, material falling within section 98(a) or (b) could very well be brought into the trial quite apart from through the provisions of Chapter I of Part II of the Criminal Justice Act 2003. The words in section 98(a) “has to do with the alleged facts of the offence” are quite widely drawn and it seems to us are wide enough to cover the cartridge in this case, which had originally been the subject matter of the count joined in the same indictment, albeit subsequently severed. It is irrelevant for the purposes of the present issue whether there was a single cartridge or an arsenal of weapons. In the light of the explanation of Mr Rowlands, apparently accepted by the Crown, it is difficult to see what relevance the cartridge had, in the event, to the jury’s verdict.

[24]As to the previous convictions, it is now conceded that the judge was in error to admit the evidence under section 101(1)(g) – the defendant has made an attack on another person’s character. It was a co-defendant, not the Crown, who made the application. This gateway is not concerned with issues between co-defendants (see section 106 and particularly 106(3) which provides, that only prosecution evidence is admissible under section 101(1)(g)). (See also Hanson para 5).

[25]That leaves section 101(1)(e). Here the evidence is admissible only if it has substantial probative value in relation to an important matter in issue between a defendant and a co-defendant. Mr Roochove’s submission is that Rowlands’ defence was no more than a denial of participation (see Varley). His co-defendant had accepted by way of admission under section 10 of the Criminal Justice Act 1967 that:• cash found on the premises was his;

• his fingerprints were found on the package containing the drugs;

• his fingerprint was discovered on a latex glove that contained traces of ecstasy. However, we do not think that these admitted facts take this case outside section 101(1)(e). This was in reality a cut throat defence. The judge was entitled, indeed required, to look at the whole picture.

[26]It should be borne in mind that the judge’s discretion not to admit evidence in sections 101(3) and (4) does not apply to the gateway in section 101(1)(e). However, the passage of time between a previous conviction and the offence charged referred to in section 101(4) may be a very relevant matter to which the judge should draw attention when he sums up to the jury. 27. Our attention was also drawn to section 104(1) which provides:

“Evidence which is relevant to the question whether the defendant has a propensity to be untruthful is admissible on that basis under section 101(1)(e) only if the nature or conduct of his defence is such as to undermine the co-defendant’s defence.”

[27]But the judge still had to be satisfied that the evidence had substantial probative value before it was admissible through the gateway in section 101(1)(e). This question is ultimately a question for the judge on his “feel” of the case. It is not clear from his ruling that he fully considered this issue. We are very doubtful whether, had we been in the same position as the judge, we would have concluded that the evidence crossed this threshold. Once admitted however, what weight the jury was to attach to the evidence was an entirely different matter. The Vice-President gave this warning in Hanson at paragraph 18:

“Our final general observation is that, in any case in which evidence of bad character is admitted to show propensity, whether to commit offences or to be untruthful the judge in summing up should warn the jury clearly against placing undue reliance on previous convictions. Evidence of bad character cannot be used simply to bolster a weak case, or to prejudice the minds of a jury against a defendant. In particular, the jury should be directed; that they should not conclude that the defendant is guilty or untruthful merely because he has these convictions. That, although the convictions may show a propensity, this does not mean that he has committed this offence or been untruthful in this case; that whether they in fact show a propensity is for them to decide; that they must take into account what the defendant has said about his previous convictions; and that, although they are entitled, if they find propensity as shown, to take this into account when determining guilt, propensity is only one relevant factor and they must assess its significance in the light of all the other evidence in the case.”

[28]We come then to the judge’s summing up. He said this at page 14F:

“During the course of this trial you have heard evidence that both defendants have previous matters recorded against them, but you will recall those previous convictions, as they are called, are of a dissimilar nature and are, for the most part, some considerable time ago. You may think that they are of little or no relevance to this trial.”

He continued a little later:

“Both defendants have given evidence and you may therefore think that it is right to take all those matters into account when deciding whether or not the defendant’s evidence to you was truthful. The defendants, of course, argue that in making a clean breast before you and relying on the positive character evidence that each of them is more likely to be telling the truth. You must decide because the facts are for you, to what extent, if at all, the character of each of them helps you in deciding whether you believe their evidence.”

[29]This seems to us to be very close to advising the jury to ignore the previous convictions. The judge gave no direction about the cartridge or the antique firearm. This is hardly surprising as they had faded into insignificance in the case. The prosecution had said nothing about them in their final speech; nor had they sought to rely on Rowlands’ previous convictions.

[30]The handling offence was committed 13 years before the trial. The jury was not made aware of its circumstances and, it seems to us, that it can have had only the most marginal relevance to the question whether Rowlands was telling the truth about the drug offences with which he was charged. That apart, none of the previous convictions can have had any relevance either to propensity to truthfulness or the commission of drug related offences.

[31]At page 35 the judge, when dealing with Rowlands evidence, reminded the jury that he had earlier given them a direction about his convictions and also that there was an admission about the gun and the cartridge.

[32]There was a strong case against Rowlands who was, in effect, caught red handed. Each defendant blamed the other for the considerable quantity of drugs that was found in the house where they were. The introduction of the previous convictions of Rowlands by his co-defendant was admitted by the judge. They were, however, insignificant in relation to the real issue in the case. The judge effectively told the jury to ignore them and in our view the conviction is safe.

[33]As to sentence, 10 years was a severe sentence but the conspiracy involved a substantial quantity of class A drugs. The judge did not distinguish between the defendants. Both defendants were refused leave to appeal by the single judge. Miss Davey, for Edwards, has made a strong plea on his behalf that because of the serious injuries he suffered in the recent road traffic accident, custody will be a greater penalty for him than for a fit man. On the other hand there is no reason to believe he will be permanently disabled; the recovery process is still continuing. We were referred to R v Warren and Beeley

[1996] Cr App R (S) 223

, and it was submitted that a starting point of 10 years was too high in the light of the quantity and purity of the drug. We do not agree. In our judgment the sentence was not in either case either wrong in principle or manifestly excessive and we refuse this renewed application. McLean.

[34]The sections of the Criminal Justice Act 2003 referred to in this appeal are sections 101(1)(d), 101(1)(e), 101(3), 104(1) and 112.

[35]On 5 July 2005 in the Crown Court at Taunton McLean was convicted of two counts of section 18 wounding with intent before Judge Hume Jones and a jury. Because the appellant had a qualifying previous conviction he was given an automatic life sentence. The determinate sentence was 5 years on each count concurrently. A co-defendant called Saunders was acquitted of one offence of wounding with intent.

[36]McLean’s application for leave to appeal against conviction has been referred to the full court by the registrar. We grant leave.

[37]By count 1 McLean and Saunders were jointly charged with wounding Julian O’Toole with intent to cause grievous bodily harm. By count 2 McLean alone was charged with wounding Adrian Green with like intent.

[38]The Crown’s case was on the following lines. On 8 July 2004 O’Toole (the victim in count 1) received a phone call from Saunders suggesting he went to 5 Regal Court to collect some money he was owed. At the flat were three men, the appellant, Saunders and a man called Johnny.

[39]When O’Toole and his brother Adrian Green (the victim in count 2) arrived at the flat they were invited into the living room where McLean was present. Johnny appeared at the door and went to attack O’Toole with a baton, with Saunders saying, “hit him, hit him.” McLean produced a knife from under a cushion and struck out at O’Toole’s head. Green tried to stop this. O’Toole saw Saunders with a knife and he was pushed into the kitchen by Saunders and Johnny. Saunders tried to stab O’Toole. Johnny was wielding the baton. Meanwhile McLean turned on Green and struck him on the head. Green managed to get out and slipped down the stairs. At the bottom of the stairs he was attacked by McLean with a knife, which Green held onto in order to try and defend himself. McLean then went back upstairs to join Saunders in the attack on O’Toole.

[40]McLean’s case was that he had no involvement in the attack whatever. O’Toole was attacked by two men; one of them must have been Saunders. As to count two, Green produced a knife. He only responded in self defence, possibly kicking Green in the face and then punching him and banging his hand to try to make him release the weapon.

[41]Saunders’ case was that he was not a party to a plan or the attack on O’Toole. The injuries to both victims were caused by McLean and Johnny. Also, McLean had a propensity for violence which made it more likely he would have fought with O’Toole and Green.

[42]When interviewed, McLean said he was not present at the time of the attack. Saunders said he had played a minor role in the attack. He threw a single punch and then retreated to another room from which he heard the attack. In evidence, Saunders said he took no part in the attack at all. Johnny hit O’Toole and Green with a butt and McLean attacked O’Toole and Green with a knife.

[43]The Crown sought to adduce during the prosecution case evidence of McLean’s previous convictions under sections 101(1)(d) as relevant to an important matter in issue between the defendant and the prosecution namely whether the defendant had a propensity to commit offences of violence. The offences were, wounding with intent using a knife in May 1998, two offences of battery in July 2001 and affray in May 2004. The judge rejected the application.

[44]However, the following day the co-defendant Saunders sought to adduce evidence of McLean’s bad character under section 101(1)(e) on the ground that it had substantial probative value in relation to an important matter in issue between the defendant and the co-defendant.

[45]The judge ruled that the separate versions put forward by the two defendants was an important matter in issue between McLean and his co-defendant and that McLean’s bad character had substantial probative value. 47. The grounds of appeal are: “(i) The judge erred in granting the application of the co-accused to produce evidence of the (McLean’s) bad character under section 101(1)(e) of the Criminal Justice Act 2003 when the judge had hitherto refused the Crown’s application for leave to adduce the same evidence under section 101(1)(d) of the Criminal Justice Act 2003 on substantially the same grounds. (ii) It was perverse of the judge to resolve the same arguments differently on the second application where the arguments in the case were so similar under section 101(1)(d) on the Crown’s application and under section 101(1)(e) on the application of the co-accused. (iii) The bad character evidence of (McLean) neither had “substantial probative value” nor went to “an important matter in issue between the defendant and a co-defendant”.

The judge in admitting the evidence ruled as follows:

“There is therefore an issue set up between these two defendants, it may not be what is customarily called a cut throat defence in that the one is not making the affirmative allegation that the other was responsible for the crime or crimes, but there is an issue between the defendants, their separate versions create an issue between the defendants. Is that an important issue, matter in issue? It seems to me that it must be an important matter in issue. The next question I have to ask myself is whether or not the co-defendant that is Mr McLean’s bad character has substantial probative value in relation to that important issue. It seems to me that it must be right that if one defendant who is saying he was not involved in violence and the other one is saying he was not involved in the violence, but one has got previous convictions of violence it seems to me that on the basis of Regina v Price there must be, it must be relevant, sorry, it must have substantial probative value in relation to the issue between the two defendants and so I find this gateway is open and therefore it must be right that Mr Warren can adduce the evidence of bad character, of Mr McLean’s bad character. So far as the position is concerned in relation to my ruling of yesterday, it seems it has been said it must follow that if I rule it out yesterday, I should rule it out today. It seems to me that there are different considerations between an application made by the Crown to adduce evidence of bad character and evidence, applications between defendants to adduce bad character. It seems only common sense to me there must be different considerations when one is considering the position between two defendants as opposed to the applications made by the Crown and it seems to me that therefore because I ruled against the Crown yesterday I am not bound to rule against Mr Warren today.”

[47]No complaint is made of the summing up which seems to us to have dealt appropriately with the issues in the case. The sole complaint is that the judge should not have admitted evidence of McLean’s previous convictions as relevant to propensity to commit offences of violence.

[48]The first two grounds of appeal are both directed to the point that the judge rejected the Crown’s application to adduce evidence of McLean’s previous convictions under section 101(1)(d) on 28 June 2005, yet very soon afterwards on the next day acceded to the co-defendant’s application under section 101(1)(e) on substantially the same grounds and argument. In our view the defence may have been somewhat fortunate to have resisted successfully the Crown’s application under section 101(1)(d). The main reason for the judge’s decision appears to have been that McLean’s earlier violence was in response to longstanding problems that he had been unable to resolve and that this was distinguishable from the violence in the charges. When the judge rejected the Crown’s application he said, “there is no propensity here shown to such an extent that it would be relevant and, in any event, it seems a bit unfair.”

[49]Different considerations applied to the co-defendant’s application which was made under a different provision, namely section 101(1)(e). The question for this court is whether the judge properly applied the relevant provisions on this application; it matters not that he may previously have been in error on the Crown’s application, even if his factual conclusions on that application appear, to an extent, in conflict with his later conclusions.

[50]The judge correctly directed himself that he first had to decide whether there was an important matter in issue between the two defendants and secondly whether the bad character had a substantial prohibitive value. He referred to R v Price [2005] Crim L R 304 as illustrating that the propensity to violence of D1 may be relevant as making it less likely that the offender was D2. It was important which of McLean or Saunders was more likely to have been O’Toole’s assailant and the fact of McLean’s section 18 conviction was of substantial probative value. See R v Weir and Others

[2005] EWCA Crim 2866

, para 120.

[51]The judge concluded that although this was not perhaps a cut throat defence in the classic sense, their separate versions of what had occurred created an important issue between them. This seems to us to be plainly correct. Each individual tells an entirely different story as to what went on. Mr Stanniland, for McLean, sought valiantly to distinguish between important issues and ancillary issues, his argument really coming to this, that although there was a series of ancillary issues between the defendants there was no important issue. We remind ourselves that “important matter” is defined in section 112 as a matter of substantial importance in the case as a whole and this, as Judge P pointed out in R v Renda and Others

[2005] EWCA Crim 2826

para 3, is very much a matter for the ‘feel’ of the judge. The judge went on to consider whether the previous convictions of McLean had substantial probative value to the issue between the defendants. He said it seemed to him that if each defendant was saying he was not involved in the violence and one has previous convictions for violence that must have substantial probative value on the issue between them.

[52]Mr Stanniland argued that the judge’s ruling against him was even more perverse when one took into account that section 101(1)(e) provided a more stringent test than section 101(1)(d) and yet he had admitted the evidence under the former but not the latter. We are not, however, persuaded by any of Mr Stanniland’s grounds. The judge applied the correct test and, contrary to Mr Stanniland’s third ground of appeal, the bad character evidence did, in our view, have substantial probative value. The appeal is accordingly dismissed.

[53]Before leaving this case we make two further comments. It was not a case where the judge had any discretion to refuse to admit the evidence under section 101(3) and, in fairness, it was never suggested that he had. Once the section 101(1)(e) gateway was open the evidence was in. Nor did section 104(1) apply because the issue was propensity to violence not a propensity to untruthfulness.

Smith

[54]The sections of the Criminal Justice Act 2003 referred to in this appeal are sections 98, 100, 101(1)(c), 101(1)(d), 101(3), 101(4), 103(1) and 109(1).

[55]On 17 June 2005 in the Crown Court at Newport, Isle of Wight sitting at Portsmouth before Judge Hetherington and a jury this appellant, aged 62, was convicted of five counts of gross indecency with a child (counts 3-7) and sentenced to 21 months imprisonment on each count concurrently. He was acquitted of rape, count 9. Further counts of rape, count 1, indecency with a child, count 2, and indecent assault on a female, count 8, had been stayed as an abuse of process before the trial. He appeals against conviction by leave of the single judge.

[56]There were three complainants Tracey-Anne Moakes who was born on 17 October 1976, her sister Dawn Birkett who was born on 18 November 1979 and Shannon Rose who was born on 21 June 1988.

[57]The three counts that were stayed as abuse of process were count 1, rape, on Tracey-Anne Moakes between October 1989 and October 1993 when she was aged between 13 and 17; count 2 gross indecency with a child on Dawn Birkett between November 1988 and November 1991 when she was aged between 9 and 10; and count 8 indecent assault on Tracy-Anne Moakes on the 3 February 1998 when she was aged 21.

[58]The remaining counts on which Smith was tried and convicted related to Shannon Rose. The 9th count, on which Smith was acquitted, alleged that he had raped Tracy-Anne Moakes in October 1992. The counts on which he was convicted alleged sexual abuse of Shannon Rose over the period of June 1993 to June 1995, when she was in the age range 5 to 7.

[59]The reason why counts 1, 2 and 8 were stayed as an abuse of process was that the Hampshire Police had written to Smith in June 2 1998 saying no further action would be taken against him in respect of these matters.

[60]The application to stay was resisted by the Crown and the judge made his ruling on 14 April 2005. The judge indicated when ruling on the stay that the Crown might wish to apply to adduce the evidence that underlay these counts as evidence of bad character under the Criminal Justice Acts 2003. The Crown duly made such an application and the judge ruled in its favour on 10 May 2005. The terms of the application were to adduce the following evidence:

“A. Allegations by Tracey-Anne Moakes: (i) That the defendant raped Tracey-Anne Moakes when she was about nine years old. (ii) That the defendant indecently assaulted Tracey-Anne Moakes between the ages of five to nine. (iii) That on 3 February 1998 the defendant indecently assaulted Tracey-Anne Moakes. (iv) That on 9 February 1998 the defendant told Tracey-Anne Moakes to “drop the case”. (v) Supporting evidence of the above: Christoper Moakes, Robert Birkett and N Anderson. B. Allegation by Dawn Birkett: That the defendant indecently assaulted Dawn Birkett when she was aged about nine or ten on several occasions.” (i) That the defendant raped Tracey-Anne Moakes when she was about nine years old. (ii) That the defendant indecently assaulted Tracey-Anne Moakes between the ages of five to nine. (iii) That on 3 February 1998 the defendant indecently assaulted Tracey-Anne Moakes. (iv) That on 9 February 1998 the defendant told Tracey-Anne Moakes to “drop the case”. (v) Supporting evidence of the above: Christoper Moakes, Robert Birkett and N Anderson. That the defendant indecently assaulted Dawn Birkett when she was aged about nine or ten on several occasions.”

[61]The underlying question on this appeal is whether the judge was right to admit the evidence in the light of section 101(3). Section 101(3) provides:

“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.”

And section 101(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 the evidence relates and the matters which form the subject of the offence charged.”

[62]The facts are these. Smith was arrested in March 1998 following an alleged indecent assault on Tracey-Anne Moakes. The police were then investigating three matters. The first was a complaint by Tracey-Anne Moakes that sometime between 1989 and 1991 Smith had given her a lift in a van, driven her somewhere and raped her. He denied giving her a lift in any vehicle. That became count 1, the first of the stayed counts. Next, Dawn Birkett claimed he had committed an act of gross indecency with her in his garden shed at Coronation Gardens between 1988 and 1991 where he lives. He denied ever allowing Dawn Birkett into his shed. That became count 2, the second of the stayed ccounts. Third was Tracey-Anne Moakes complaint that Smith gave her a lift in his van to a different location on 3 February 1998 and indecently assaulted her. This became count 8, the third of the stayed counts. As is apparent, the third of the three events took place shortly before Smith was arrested, the other two some years before.

[63]On 2 June 1998 the Hampshire Constabulary wrote to Smith in these terms:

“On the 9th of March 1998 you were arrested and detained by Detective Constable Hardy in connection with an allegation of attempted rape and indecent assault. A full report has now been submitted by the investigator to myself. This in turn has been forwarded to the Crown Prosecution Service for their advice. After careful consideration, it has been decided that no further action will be taken against you in relation to these alleged offences.”

[64]The judge said in his ruling that the letter would have been intended by the prosecution and understood by the defendant as an unequivocal statement that no further action would be taken. He said he did not think it would have been interpreted by the defendant, nor should it have been, as meaning that in the event no further complaint came forward or further evidence emerged that the decision might be revisited and the prosecution might be launched.

[65]The position was indeed as set out in that letter for a period of about five years, but then fresh allegations against Smith emerged and these eventually came to form the subject matter of counts 3 – 7 and count 9 of the indictment.

[66]We should add that we were told that nowadays letters are no longer written in such unqualified terms as the letter of 2 of June 1998. There is usually now a qualification in terms such as, “unless new evidence emerges.”

[67]Smith and his family moved to 11 Parsonage Road, Sandown on 21 November 1988. The third complaint Shannon Rose, lived at 6 Parsonage Road with her family. In 2002 she alleged that in 1993 to 1995 when she was aged between five and seven, Smith committed a number of acts of indecency with her in his garden shed. Tracey-Anne Moakes made a further statement to the police in February 2004 in which she alleged that she had been raped on her way home in October 1992 when she was about sixteen years old. That was count 9 on which the jury acquitted.

[68]Shannon Rose’s evidence relating to count 3 – 7 was as follows. She used to go to Smith’s house and play with his son Matt. She said that there was a wooden garden shed at the bottom of the garden on the right hand side. She said that when Matt went into the house Smith would invite her into the shed. She said that she would go inside the shed thinking that he wanted to show her his tools. Smith would undo his trousers and make her touch his penis. She said he would tell her it was a natural thing to do and there was nothing wrong with it. She said he would pretend to be tightening his belt; he would then take out his penis and would start touching himself and demonstrate how he put his hand around it. She said he would then tell her it was her turn. She did not tell her mother as she was too scared and she also thought there was nothing wrong. She said she did not know why she kept going back to the house. On the final occasion she refused to touch him and he said, “just do it.” She said that by this stage she had realised what she was doing was wrong. In cross-examination she said she had bonded with Smith and that he made her feel loved. He was friendly towards her and she was friends with him as she did not really get on well with her mother. She accepted that in 2003 she made an allegation that somebody at a party had been punched and held by the throat. She said that she later withdrew this allegation because she had problems at the time and did not wish to take the matter to court. She described her relationships with other members of her family in 2002 and 2003 as volatile and that at times she was depressed and had attempted to take her own life. She did not recall Tracey-Anne Moakes or Dawn Birkett although she had heard of the latter.

[69]In re-examination she said that the first people she told about the allegations were her father and Tina Dempsey in 2003. She did not wish to pursue the allegations as she was friends with Smith’s son Matt and she did not want it to appear as if she did not wish to go to his house.

[70]Smith categorically denied the allegations in interview. When he gave evidence he said that there was a shed at Parsonage Road but that it was a home made wooden lean-to adjacent to the side entrance to the house. He used it for welding and small engine work. He never dealt with fish or lobsters in the shed. He said the shed was less then 3ft wide and he did not allow children anywhere near the electric welder. He did not recall Shannon Rose ever being in the shed and he denied ever touching her.

[71]The evidence that the judge was invited to admit was the evidence of Tracey-Anne Moakes and Dawn Birkett that would have supported the stayed counts and also some more general allegations of Tracey-Anne Moakes that she had made in her witness statement of February 1988 about what happened to her between the ages of five and nine. This was a series of indecent assaults and being shut in the lobster pot in the shed, on Shanklin beach when she was sixteen that she referred to in her March 2004 statement and other incidents in the garden shed when Smith tried to make her touch his penis. Thus in summary the Crown was seeking the admission of evidence from Tracey-Anne Moakes that(a) supported the stayed charges 1 and 8 and

(b) went to other indecency by Smith towards her and also evidence from Dawn Birkett that supported charge 2.

[72]The judge in a conspicuously clear and careful ruling started with section 98 noting that references to bad character in Part II of the 2003 Act are to evidence of, or to a disposition towards misconduct on Smith’s part. The description, therefore, was widely drawn.

[73]The judge in our view rightly rejected the submission that the evidence was admissible through gateway 101(1)(c) as important explanatory evidence. He turned then to section 101(1)(d) and concluded that the question for him was whether the evidence was capable of establishing a propensity on the part of the defendant to commit the offences charged. By section 103(1) matters in issue between defendant and the prosecution include whether the defendant has propensity to commit offences of the kind with which he is charged. Whether it did or not, i.e. the weight to be attached to it would be a matter for the jury. He referred to para 18 of the judgment of the Vice-President in Hanson to which we have already referred in paragraph 27. The judge rightly observed that this was a case of misconduct or disposition towards it rather than convictions, and secondly that the number and pattern of incidents could be important as more indicative of a propensity than a single incident. He also reminded himself of para 9 of the judgment in Hanson observing that what had to be looked at was probative force. He then went on to say:

“I note that all incidents in this case involve young girls, or young women aged 21 at a maximum, all known to the defendant and I make no findings as to how well known, they were not strangers. Secondly, there are strong connections made by the garden shed, references made to it at respective houses in Coronation Gardens by Dawn Birkett, at Parsonage Row by Shannon Rose and at Coronation Gardens by Tracey-Anne Moakes. Thirdly, it seems to me that there is a discernable pattern to the abuse allegedly taking place in the shed with fishing tackle and the smell of fish. I do not overlook the fact of course that there are some obvious differences as well…….”

And a little later:

“……I conclude that there is ample evidence to conclude that the defendant did have a propensity. The material sought to be produced to that issue is relevant to and probative of that propensity.”

He accordingly concluded that the section 101(1)(d) gateway was open.

[74]He then went on to consider section 101(3) he noted that the material was old and that by analogy with the observations in Hanson about old convictions it ought only to be admitted if it showed continuing propensity. He observed that the counts had been stayed not because defendant would not receive a fair trial but because it would be unfair to try him. There was some prejudice which he said went to the fairness of being tried and the possibility of being convicted. It was fairly minimal and could be dealt with by telling the jury the reason why they were no longer trying the stayed counts. As to the defence contention that the evidence was being introduced to bolster a very weak case, he said that it was not for a court to judge the witnesses in advance and evidence should not be excluded on this ground. Any issues about collusion and contamination were for the jury.

[75]The court’s discretion in section 101(3) is widely phrased and the test is whether the court thinks 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. Provided in exercising his discretion the judge has in mind the time factor in section 101(4) (which the judge did in this case) this court will not ordinarily interfere with the decision unless there has been some error in principle.

[76]Absent some error of principle in the present case, it is difficult to find any justifiable basis for concluding that the judge erred in the exercise of his discretion. Did he err in principle? Here the argument is that it is quite simply wrong for someone who has been told he will not be prosecuted in respect of certain allegations to find himself facing the selfsame allegations, not as charges but as prosecution evidence, in a criminal trial.

[77]The relevant underlying principle seems to us to be this. Prima facie all evidence that is relevant to the question whether the accused is guilty or innocent of the offence charged is admissible. In R v Z

[2000] 2 Cr App R 281

it was accepted by the defendant that the evidence of the three complainants in respect of whose complaints he had been acquitted was relevant to the question whether he was guilty of the offence of rape with which he had been charged. The issue was not whether the defendant was guilty of having raped the three other complainants; he was not being put on trial again for those offences. The only issue was whether he was guilty of the fresh allegation of rape. Lord Hope said at p.283 that the guiding principle was that prima facie all evidence which is relevant to the question whether the accused is guilty or innocent of the offence charged is admissible. He said that the objection to the admissibility of the evidence was based on Lord MacDermortt’s statement in Sambasivam v Public Prosecutor, Federation of Malaya

[1950] AC 458

, 479 that the effect of the verdict of acquittal pronounced by a competent court after a lawful trial is not restricted to the fact that the person acquitted cannot be tried again for the same offence. He said that it is binding and conclusive in all subsequent proceedings between the parties of the adjudication. Lord Hope went on:

“But I agree with my noble and learned friend Lord Hutton that the observation which is contained in the second of these two statements is in need of qualification in order to confine its application to its proper context. The principle which underlines both statements is that of double jeopardy. It is obvious this principle is infringed if the accused is put on trial again for the offence of which he has been acquitted. It is also infringed if any other steps are taken by the prosecutor which may result in the punishment of the accused on some other ground for the same offence. But it is not infringed if what the prosecutor seeks to do is to lead evidence which was led at the previous trial, not for the purpose of punishing the accused in any way for the offence of which he has been acquitted, but in order to prove that the defendant is guilty of a subsequent offence which was not before the court in the previous trial.”

[78]If evidence of previous allegations is in principle admissible notwithstanding that the accused was acquitted of charges based on those allegations in a previous trial, it is difficult to see why in principle evidence relating to allegations that have never been tried (i.e. because of a stay for abuse of process) should not be admissible. The defendant’s protection comes through the judge’s discretion under section 101(3) or, in an appropriate case, through section 78 of the Police and Criminal Act 1984.

[79]Mr Moores, who has appeared before us for Smith as he did in the court below, submits that Smith was in effect tried on the charges that were stayed. We cannot accept this. The jury was not required to return any verdict; it simply heard evidence that the Crown claimed on the basis of propensity supported the charges that were before the jury. In this regard it should be noted that Smith was acquitted of the only remaining offence in respect of which either Tracey-Anne Moakes or her sister were complainants.

[80]There is one other point with which we wish to deal. The judge correctly identified at paragraph 14 of his ruling that what he had to decide was whether the evidence had the capacity to establish propensity to commit the offences charged. Whether it actually did so was a matter for the jury. As Kennedy LJ pointed out in R v Weir and Others

[2005] EWCA Crim 2866

, para 7 a defendant’s propensity to commit offences of the kind charged can be proved in ways other than by evidence that he has been convicted of an offence of the same description or an offence of the same category.

[81]Mr Moores questions whether an allegation that is untested by a judicial or quasi-judicial finding is evidence of a defendant’s bad character within the opening words of section 101. He refers to Bovell para 21 where the Vice- President expressed considerable doubt as to whether the mere making of an allegation is capable of being evidence within section 100(1). That was said in the context of an allegation of wounding with intent made and withdrawn by the victim against the complainant. As the Vice-President said, if the allegation was to be admitted there would have to be an investigation of relevant-matters. Section 100 is dealing with a non-defendant’s bad character, whereas section 101 is dealing with a defendant’s bad character. We are persuaded that the allegations in the present case are capable of constituting evidence under section 101, particularly in the light of section 109(1) which provides that:

“Subject to subsection (2), a reference in this Chapter to the relevance or probative value of evidence is a reference to its relevance or probative value on the assumption that it is true.”

Accordingly we do not have any difficulty with the fact that the evidence admitted by the judge was in the category of allegations rather than convictions. Whether or not the allegations were true was a matter for the jury.

[82]Mr Moores submitted that the protection of section 101(3) was illusory if the judge did not conduct an assessment of the weight of the evidence sought to be admitted. We note the similarity in wording between section 101(3) and section 78 of the Police and Criminal Evidence Act 1984. Each section requires the judge to exercise a discretion based on the particular circumstances of the case and an assessment of the adverse effect, if any, on the fairness of the proceedings of the introduction of the evidence. Whilst the judge in exercising that discretion will have regard to the potential weight of that evidence it is not his job to usurp the jury’s function of deciding what evidence is accepted and what rejected. But obviously if, for example, it is inherently incredible that would be likely to be a strong factor against admitting it. We wish to emphasise the broad nature of the judge’s discretion under this subsection. The judge’s job is to police the gateway not to embark on the jury’s job of evaluating the evidence. We reiterate the cautionary words of the Vice-President in Bovell about the undesirability of descending into satellite litigation. We have considered carefully the judge’s exercise of discretion in the present case and we are unable to find any fault with it.

[83]A peripheral point taken by Mr Moores is that item A(iv) in the Crown’s application that on 9 February 1998 Smith told Tracey-Anne Moakes to drop the case was not evidence of bad character as defined in section 98. Even if that is correct, it makes no difference as the evidence was admissible anyway.

[84]There is a second ground of appeal that the court should allow the appeal on the “lurking doubt” basis referred to in R v Cooper 53 Cr App R 82. This submission seems to us to come very close to saying that if the relevant provisions of the Criminal Justice Acts 2003 are applied as the judge, in our view correctly applied them, an unsafe conviction and therefore an unjust result necessarily follows. We do not agree. No complaint whatsoever was made about the way in which the judge summed up this case and we are unpersuaded that the conviction is unsafe.

[85]Our conclusion in this appeal is as follows. There could have been no justifiable complaint about the admission of the “bad character” evidence but for the letter and following it the stay previously ordered by the judge. That stay does not, in principle render the evidence inadmissible. The judge’s exercise of discretion under section 101(3) cannot be faulted as Wednesbury unreasonable as submitted by Mr Moores and the appeal must be dismissed.

[86]We understand the Crown’s desire to put the whole picture with regard to Tracey-Anne Moakes and Dawn Birkett’s evidence before the jury in this case. We do, however, give a word of caution for the future about the general undesirability of the jury being required to explore satellite issues one stage removed from the charges they are trying unless this is really necessary. Prosecutors should keep this in mind. Enright and Gray.

[87]The sections of the Criminal Justice Act 2003 referred to in this appeal are sections 98 and 101(1)(b).

[88]On 10 February 2005 in the Crown Court at Luton before Judge Foster and a jury Kevin Enright and Rosalind Gray were both convicted possessing a class A drug, ecstasy, with intent to supply (count 1); possessing a class B drug, amphetamine, with intent to supply (count 3); and possessing another class B drug, cannabis resin, with intent to supply (count 5). Earlier on 26 July 2004 Gray had pleaded guilty to possession of cocaine. Each received concurrent sentences of four year’s imprisonment. Enright appeals against conviction by leave of the single judge. Gray renews her application for leave to appeal against sentence after refusal by the single judge.

[89]The facts of the case are as follows. On 31 October 2003 police officers attended 59 Pelham Court in Hemel Hempstead with a search warrant. Upon entering the property they found Enright and Gray in bed together. The officers began to search the bedroom and found capsules containing white powder on Enright’s side of the bed. Enright was then arrested. The search continued and a bag containing a resinous substance and some paper wraps was found on Gray’s side of the bed. Two bags containing tablets were also found on Gray’s side of the bed. Gray was arrested and then taken into the bathroom in order to be strip searched. Gray took off her dressing gown and leant forwards into the laundry basket. A police officer then found a large lump of cannabis resin in the basket and four clear plastic bags containing a hard brown substance in her dressing gown pocket. Pills, hollow pills, electronic scales and a penknife were later found in the living room and a small lump of resin and four self-seal bags were found in the kitchen. Enright and Gray were both taken to Hemel Hempstead Police Station. A forensic scientist later confirmed that all the substances seized from the flat were controlled drugs. In total 84.5 ecstasy tablets, 19 capsules containing a total of 7.63 grams of amphetamine and just over 200 grams of cannabis resin were seized.

[90]The prosecution case was that Enright and Gray were running a small scale drug dealing business together from their flat. This could safely be assumed from the volume of drugs and the positions of the drugs found in the flat coupled with the electronic scales, the knife, the re-sealable bags and the hollow capsules which were also found in the flat. Enright’s case was that he knew nothing at all about the presence of the drugs; they were nothing to do with him.

[91]The issue for the jury was whether Enright was aware of the presence of the drugs in the flat and if so, whether he and Gray were in possession of those drugs with the intention of supplying them to others.

[92]Included in the Crown’s witnesses was John McCawley, who was Gray’s former husband. They had been divorced for over 10 years but Gray had stayed with him on a short term basis. He said he saw her taking crack cocaine almost everyday and he saw her with a large amount of cannabis resin. Gray had packets of cocaine, some of which were for her own use. People were contacting Gray on her mobile phone although he said he did not hear her “setting up anything”. Gray told him she was not dealing in drugs. On 20 October 2003 he asked Gray to leave and then went to work. When he returned Gray had gone but she had stolen some items from the house. He contacted the police two days later as she had neither apologised nor returned any of the items to him.

[93]The Crown made a successful application to adduce the convictions of Gray in the light of her counsel’s cross-examination of McCawley. Enright’s counsel elected to cross-examine the police officer and lead evidence of his convictions. He said he had a catalogue of convictions, some for theft going back to the 1970’s and 80’s. More recently most were drink related including assaults, criminal damage, driving offences and assaulting a police officer. In 2003 he was convicted of possession of a small amount of amphetamine (1 gram).

[94]One reason why Enright’s counsel took this course was to minimise the potentially prejudicial effect of evidence that when the police raided the flat and arrested him he was handcuffed.

[95]Enright’s sole complaint on the character issue relates to the direction the judge gave the jury. His grounds of appeal read:

“The judge erred and/or misdirected the jury by directing them that they were entitled to regard the appellant’s previous convictions, admitted by the appellant voluntarily under S101(1)(b) Criminal Justice Act 2003, as evidence upon which they could find that he was either more likely to have committed the disputed offences or that he was not truthful.”

In other words the judge should not have allowed the jury to treat Enright’s previous convictions as being relevant to propensity or untruthfulness.

[96]The judge’s direction to the jury begins at page 34 line 17. He said:

“In this case you have heard evidence that both defendants have bad character in the sense that they have criminal convictions. It is important that you should understand why you have heard this evidence, and how you may use it. As I will explain in more detail later, you must not convict only because a defendant has bad character.”

He then dealt with Gray before going on to deal with Enright. He said at page 35 line 23:

“You also have heard about Mr Enright’s extensive criminal record, as well as his explanation for it. You have heard about this because of the questions by his barrister to PC Guinan, the officer in the case, as well as, of course, Mr Enright told you about it himself when he gave evidence. You may use the evidence of either defendant in this regard…….of either of the defendants’ bad character in the following ways: if you think it right, you may take it into account when deciding whether a particular defendant’s evidence to you was truthful. A person with a bad character may be less likely to tell the truth, but it does not follow that he, or she, is incapable of doing so. You must decide to what extent, if at all, his character, or the character, helps you when judging each defendant’s evidence. If you think it right, you may also take it into account when you are deciding whether or not either defendant has committed the offences for which they are now charged. You must decide to what extent, if at all, character helps you when you are considering whether or not he, or she, is guilty. But bear in mind that bad character cannot by itself prove guilt. It would therefore be wrong to jump to the conclusion that he, or she, is guilty just because of bad character. You have heard about Mr Enright’s one conviction for simple possession of amphetamine and Miss Gray’s one conviction for the simple possession of cocaine. You may feel that the other offences, of a completely different type (Mr Enright’s convictions for assault, driving matters, criminal damage; Ms Gray’s conviction for theft) have no bearing whatsoever upon the likelihood of these defendants having committed these drugs offences now. As regards Mr Enright’s convictions for theft and other offences of dishonesty, bear in mind that these are old and stale and occurred when he was a much younger man. You must also bear in mind what either defendant has said about those convictions.”

You must also bear in mind what either defendant has said about those convictions.”

[97]The thrust of the submissions of Mr Wade, who appeared before us for Enright as he did in the court below, was originally this. The use to which evidence of bad character can be put depends entirely on the gateway through which it has been admitted. The law does not authorise the use of bad character evidence for the purpose of establishing propensity to commit the offence or propensity to be untruthful unless it was admitted for that purpose under section 101(1)(d) i.e. relevant to an important matter in issue between the defendant and the prosecution. Here it was adduced under section 101(1)(b) at the defendant’s instigation.

(b) provides:

“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.”

[98]It was allowed in, submits Mr Wade, only for whatever purpose the defendant required it. Thus it could not be used either as evidence of propensity to commit the offence or as evidence of propensity to be untruthful.

[99]In our view section 101(1) deals merely with the issue of admissibility. It does not deal with the relevance of the evidence once admitted, any more than it deals with the weight to be attached to it.

[100]Bad character in section 98 is broadly defined. Its relevance will vary from case to case. Once admitted (no matter through which gateway) it can be used for any purpose for which it is relevant. The Lord Chief Justice made this clear in Highton.

[101]Mr Wade, appreciating that what the Lord Chief Justice said in Highton has taken the rug from under his feet on his specific point, has directed his argument more generally to what the judge said in his summing up. The judge told the jury that Enright’s bad character might mean he was less likely to tell the truth and that his one previous drug offence might have some bearing on his having committed the drug offences with which he was charged. But he pointed out:• all the other offences were of a completely different kind;

• his dishonesty offences were old and stale and committed when he was much younger;

• he had no history of drug dealing;

• he volunteered his convictions;

• what the jury made of the evidence and whether it helped was a matter for them;

• a person of bad character is not necessarily incapable of telling the truth;

• they could not convict just because of a defendant’s bad character.

[102]The case was tried very soon after the relevant provisions in Part II of the Criminal Justice Act 2003 came into force. The judge did not have the help that subsequent authorities from this court have given. He did his best and followed the Judicial Studies Board specimen direction. In truth, however, the evidence of the appellant’s bad character had very little, if any, probative value. Enright’s previous convictions played no part in prosecuting counsel’s final speech. Ms Weeks, for the prosecution, accepts that the judge should have given the jury a clearer and stronger direction. In submissions to the judge before he summed up she submitted that the convictions had no relevance to propensity and she accepted before us that the convictions cannot show a propensity for untruthfulness when the circumstances relating to them were never explored. There were in any event ancient.

[103]There are one or two passages in the part of the summing up to which we have referred that are potentially unfavourable to Enright, for example that a person of bad character may be less likely to tell the truth. But viewed as a whole the summing up came close to advising the jury that Enright’s convictions had little bearing on the issues they had to decide.

[104]In our judgment the judge should have given a clearer direction to the jury that the evidence of his bad character did not assist the Crown on either untruthfulness or propensity. The drug offence was at best of marginal relevance and the dishonesty convictions were never explored to see whether they showed propensity for untruthfulness. But, when all is said and done the evidence against Enright was strong. When the police arrived they found drugs and drugs paraphernalia all over the flat.

[105]There is a second ground of appeal that the judge should not have prohibited the jury from returning verdicts on the alternative counts of possession just because they had convicted of possession with intent to supply. Mr Wade’s reasoning appears to be that the evidence shows that there were different sources and different amounts of drugs found in different places in the flat and the jury was deprived of the opportunity of finding that Enright was not involved with all of the drugs. In our view this argument is hopeless. Having found Enright guilty of the more serious offences it was inappropriate for the jury to go on to consider alternatives.

[106]Enright’s appeal against conviction is accordingly dismissed.

[107]Gray did not appear before us and was not represented. Her case did, however, appear in our list as a non-counsel renewed application for leave to appeal against sentence. It appears from correspondence with the Criminal Appeal office that counsel was prepared to appear on a pro bono basis on her behalf that he would have done had he been made aware of the listing date. There appears to have been some confusion within the office. It is unnecessary to explore where any fault lies. In the circumstances we adjourn Gray’s application to be heard by a different court on another day.110. MR FIDLER: My Lord, I appear for Rosalind Gray. I know your Lordship has been shown correspondence --

111. LORD JUSTICE SCOTT BAKER: Yes.

112. MR FIDLER: -- where we were not told about the original listing.

113. LORD JUSTICE SCOTT BAKER: Yes, and you would like to make some representations today?

114. MR FIDLER: Well, if your Lordships are prepared to hear me --

115. LORD JUSTICE SCOTT BAKER: Yes, we are.

116. MR FIDLER: I am grateful. I have briefly seen the draft judgment that has been handed down. I do not think that that materially affects what I would say.

117. LORD JUSTICE SCOTT BAKER: No. Yours is a renewed application for leave to appeal against sentence.

118. MR FIDLER: It is only, yes. Therefore the issues in the judgment are tangential, with one issue and that is this --

119. LORD JUSTICE SCOTT BAKER: Well, we might as well get on with your case while Enright is being brought up from the cells.

120. MR FIDLER: My Lords, I am very grateful for you allowing me to come along today to deal with this matter.

121. The one issue -- and I am not looking for the moment to look at any issues of fault -- that causes me some concern is that Mr Enright was of course the co-defendant of Rosalind Gray in her trial. What I do not know is what was said on behalf of Mr Enright in relation to anything in relation to his appeal, because of course matters of her convictions very well were relevant in relation to the appeal of Enright because he, through his counsel, cross-examined her convictions, Gray's convictions, into the trial. So I do not know what was said when your Lordships were constituted on an earlier occasion.

122. LORD JUSTICE SCOTT BAKER: Well, you can see what we have said in the judgment.

123. MR FIDLER: Thirty seconds ago I had the opportunity of glancing at it. Unfortunately, the office did not provide it, nor has it been given to me this morning.

124. LORD JUSTICE SCOTT BAKER: No.

125. MR FIDLER: So I am in that difficulty.

126. LORD JUSTICE SCOTT BAKER: I am not sure that there is anything there that is greatly going to affect your client, but if you want to read it, you better read it, had you not?

127. MR FIDLER: If your Lordship is saying there is nothing there that affects my client -- my real concern is whether anything was said on the day your Lordships heard the appeal about Rosalind Gray's convictions, because one of the issues that I put forward, as Mr Bolton puts forward in her grounds, is that there was a real difference between that of Gray, who had convictions for dissimilar matters.

128. LORD JUSTICE SCOTT BAKER: Well, I do not think we ever heard any details of Gray's convictions.

129. MR FIDLER: Right, then the point that I make is that your Lordships will need to see Enright's convictions and will need to see Gray's convictions because, as Mrs Bolton says in the grounds, he was in a position of -- he was different, he had previous convictions, I think for other drugs offences, and therefore a real distinction, we say, should have been made between Enright and between Rosalind Gray, and that was the first point.

130. The second point we make is that which is put in paragraph 7. I will not read paragraph 7 for reasons that your Lordships will appreciate. Hopefully your Lordships will have --

131. LORD JUSTICE SCOTT BAKER: Paragraph 7 of your grounds.

132. MR FIDLER: Paragraph 7 of the grounds, yes, which begins: "The appellant alleges that she has ..."

133. LORD JUSTICE SCOTT BAKER: Yes.

134. MR FIDLER: I will not read the rest of it for perhaps obvious reasons, but I invite your Lordships to look at that again, and I would have been asking for more information, if at all possible, to have been put in front of your Lordships had we have known of the earlier date and matters not been advanced so speedily. You will see what is said about the issue of acknowledgement, which is four lines up from the bottom of page 7.

135. LORD JUSTICE SCOTT BAKER: Paragraph 7.

136. MR FIDLER: Paragraph 7, I am sorry. Forgive me.

137. MR JUSTICE GROSS: On what is in paragraph 7, it does not go anywhere, speaking for myself.

138. MR FIDLER: The issue, not the conclusion, but the issue in paragraph 7. I think Mrs Bolton has put two issues together.

139. LORD JUSTICE SCOTT BAKER: Well, what is the point that you are making?

140. MR FIDLER: The point I am making is I would have asked for the police to have provided more information.

141. LORD JUSTICE SCOTT BAKER: You have had ample opportunity for doing that, if you wanted to.

142. MR FIDLER: Well, I respectfully query whether I have had ample opportunity. Leave was refused. Matters then came on in the court without us knowing. The matter is listed today.

143. LORD JUSTICE SCOTT BAKER: You can treat the matter as listed today as it would have been on the basis that it had been listed in the ordinary way.

144. MR FIDLER: But if it was not on one day's notice, then we would have, I say, written letters --

145. LORD JUSTICE SCOTT BAKER: If you are saying that you have not had sufficient notice of today, which I can well understand, then what we say in the conclusion of the judgment may well be the best way ahead: it is unnecessary to explore where any fault lies with what has gone wrong, but we are prepared to adjourn Gray's application to be heard by a different court on another day.

146. MR FIDLER: Perhaps that is the best way forward, my Lord.

147. LORD JUSTICE SCOTT BAKER: Yes.

148. MR FIDLER: That is what I ask.

149. LORD JUSTICE SCOTT BAKER: Very well then, we will do that.

150. MR FIDLER: Thank you, my Lord.

151. LORD JUSTICE SCOTT BAKER: That will give you an opportunity to read the handed down judgment so you will know exactly where you are.

152. MR FIDLER: If a copy can be provided.

153. LORD JUSTICE SCOTT BAKER: It will be.

154. For the reasons given in the judgment that has been handed down, each of these appeals is dismissed. Are there any other consequential matters? Thank you very much.

Edwards & Anor, R. v [2005] EWCA Crim 3244

The judge in admitting the evidence ruled as follows:

Smith

And a little later:

(b) provides:

Cited in 8 later judgments