Purcell, R. v [2007] EWCA Crim 2604

Case No 2007/1448/C4[2007] EWCA Crim 2604
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 9 October 2007
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE TOULSON
MR JUSTICE GIBBS
HIS HONOUR JUDGE WIDE QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
JOHN PURCELL
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr G Payne appeared for AppellantMiss J Matthews-Stroud appeared for Crown
J U D G M E N T
[1]MR JUSTICE GIBBS: On 26th February 2007 in the Crown Court at St. Albans, the appellant was convicted of theft of a car. The appellant John James Purcell is 19 years old. The trial was conducted by His Honour Judge Plumstead. The appellant brings this appeal with the leave of the single judge and the basis of the appeal is that the trial judge erred in admitting on the application of the prosecution evidence the appellant's bad character.[2]The facts from which the prosecution arise are these. At about 5 o'clock in the evening on Thursday 22nd December 2005, a black Honda Civic car was stolen from Johnsons Honda Motor Dealers in Dunstable, Bedfordshire. On the following day, 23rd December, a black Honda bearing a similar index number was used to steal a second motorcar, also a black Honda in Kings Langley, Hertfordshire, which belonged to the complainant, Mrs Ann Hutchence. Two days later at about 10.15 in the evening, Mrs Hutchence's car, bearing stolen numberplates, was involved in a crash in Chester, approximately 170 miles from Kings Langley. One of the two occupants of the vehicle who were detained at the scene was the appellant.[3]The prosecution's case was that the appellant was one of those involved in the theft of the complainant's Honda on 23rd December. The defence was one of alibi. The issue for the jury therefore was quite simply whether the prosecution had proved that the defendant had taken part in the theft.[4]In somewhat more detail, the events of 23rd December were that Mrs Hutchence left home at about 8 o'clock in the morning to go to work. As she drove towards a roundabout she saw a car which was identical to hers, but in fact had a more powerful engine. She overtook the car but it followed closely behind her and eventually deliberately bumped into the back of her car. The cars pulled level with each other at the approach to the roundabout and she looked into the passenger side of the other car. The passenger had wound down the window and asked her to stop and exchange insurance details. She pulled over to the left hand side of the road and the other car parked up behind her.[5]She got out to see what damage had been caused to the back of her car and saw none immediately obvious. However, her suspicions were aroused and she attempted to make a mental note of the registered number of the other car. She was however distracted by the passenger of that other car and found that her own car was being driven off. It was driven off in a dangerous manner so as to cause her to fall over. Another motorist came to her help by taking down the index number of the other car for her. The index number thus recorded was, save for one digit, the same as that which had been stolen from the garage the day before. She later told the police that she thought that the passenger in the other car had been short, perhaps five foot four or five foot five inches in height. She gave a description of his appearance and his accent. At a video identification procedure she identified the appellant as being that person. She viewed the images twice at the identification procedure, at first saying that two of those on the parade were similar to the passenger, but she soon afterwards said that the appellant was closest to her recollection of the appearance and in evidence she said that she was sure she had made the correct identification.[6]A witness to the theft had seen the events which we have described but was unable to pick out the appellant at an identification procedure and indeed picked out an innocent volunteer.[7]The appellant made no comments in response to questions put to him in interview by the police. The prosecution successfully applied for some of the appellant's previous convictions to be admitted in evidence. The judge's decision to admit those convictions forms the basis of this appeal and to that we shall return.[8]In his defence the appellant said that he had not been present at Kings Langley on 23rd December 2005. At the time of the theft he had been in bed at home in Wrexham suffering from mumps. He had been due to attend a probation appointment but had failed to do so through illness and therefore went to obtain a medical certificate from his general practitioner. That he had done on 22nd December 2005 where he had been seen and diagnosed with mumps. He was given a certificate and directed to attend hospital the following day. On 23rd December he said he had got up late and signed in at the probation office in Wrexham at 12.10. He handed in his medical certificate and then went to hospital where tests confirmed that he was suffering from mumps. He had not been anywhere near Kings Langley.[9]On 25th December 2005 he said that he went out with his friends and drank heavily. He accepted a lift home in a black Honda Civic from somebody he did not know very well. He was asleep in the vehicle when it crashed. He passed out on his arrest. In other words, his case was that he was in the vehicle which turned out to have been stolen entirely innocently. He explained his decision not to answer police questions by saying that he had been so unwell as to be unfit and incapable of answering for himself.[10]Evidence was read in support of the defence and undisputed by the prosecution. The doctor to whom he had been on 22nd December 2005 in Wrexham confirmed that he had attended and that mumps had been diagnosed. The evidence of a receptionist at the probation office in Wrexham confirmed that he had attended the office and signed in at 12.10 on 23rd December - in other words approximately four hours after the theft. The undisputed evidence referred to thus supported aspects of the appellant's defence but did not directly go to disprove his participation in the offence.[11]We now come to the substance of the appeal, namely the judge's decision to admit evidence of the appellant's previous convictions. The previous convictions which he admitted were as follows. First, on 7th August 2001, convictions for taking a vehicle without consent, using it without insurance and driving otherwise than in accordance with a licence on 5th July 2001. Second, on 18th November 2003, convictions for driving otherwise than in accordance with a licence and using a vehicle without insurance on 17th November 2003. Third, on 25th May 2004, convictions for dangerous driving, driving whilst disqualified and driving without insurance on 15th March 2004. Fourth, on 2nd November 2004, convictions for driving without insurance and driving whilst disqualified on 5th October 2004. Fifth, on 24th January 2005, convictions for driving without insurance and driving whilst disqualified on 28th September 2004. Sixth, on 27th October 2005, convictions for driving without insurance and driving whilst disqualified on 30th August 2005. Seventh, and finally, on 3rd February 2006, convictions for driving without insurance and driving whilst disqualified on 7th November 2005.[12]In response to the prosecution's application to admit these convictions, the defence submitted that to accede to the prosecution's application would have a prejudicial and disproportionate effect on the trial given that the real issue was one of identification. The circumstances of the instant offence, it was argued, showed that there had been a sophisticated and well thought out plan to steal a car. This, it was submitted, although the offence of taking a motor vehicle without consent was in the same category, was so wholly different as to render the connection between the two meaningless. So far as the other convictions were concerned, it was pointed out to the judge that these were not offences in the same category as the instant matter and it was submitted that they did not demonstrate a propensity to commit the type of offence with which the appellant was now charged. It was submitted that reliance was being sought on the bad character evidence in order to shore up weaknesses in identification evidence which was not a proper way of relying upon that bad character evidence.[13]The judge ruled that the convictions would be admitted in evidence as they indicated that the appellant was more likely to have taken the motorcar in all the circumstances of the case. Those circumstances included dangerous driving prior to the offence of theft by tailgating and bumping into the complainant's vehicle and thereafter driving with such ferocity as to knock the complainant over. Thus there was similarities between the instant offence and the dangerous driving to which the appellant had previously been convicted. The judge also expressed a view that convictions for driving without a licence, no insurance and whilst disqualified made the appellant someone who was more likely to commit an offence such as the instant one. Accordingly the judge admitted the evidence of the previous convictions.[14]It should be noted that in addition to the previous convictions which were admitted, the appellant had previous convictions for robbery, rape and criminal damage which were not sought to be adduced. With the exception of the conviction for robbery they were rightly not sought to be adduced. So far as the robbery was concerned, we need make no further comment, since the prosecution apparently did not apply for that offence to be introduced into evidence, notwithstanding what we regard as an arguable similarity between the offence of 23rd December and the offence of robbery.[15]The convictions having been admitted in evidence and the trial having proceeded,

the judge directed the jury as follows in regard to the bad character evidence:

"Members of the jury I am now going to deal with some specific directions, the first of which, and I deal with it in no particular order, is the question of the defendant's bad character."
The judge then summarises the list of previous convictions to be admitted. He continues:
"How do you deal with that members of the jury? Well may I first tell you why you heard about it? You heard about it because the prosecution are entitled to say that his history of offending is such that it is more likely that he committed an offence of the type he is now charged with than otherwise. That is for you to judge. The Crown are entitled to put it before you and it is for you to judge whether or not it has that effect. Members of the jury, having heard the evidence for that purpose, you are entitled to take it into account. You are entitled to take it into account but you must decide to what extent, if at all, his character, his previous convictions, help you when you are considering whether or not he is guilty, but bear this in mind, and I stress this: his bad character can't in itself prove his guilt I hope that is obvious. The fact that somebody has been in trouble for taking another person's car and for driving badly or in contravention of the laws on insurance and driving licenses and disqualification on even a number of occasions can't logically prove his guilt and you must not over weigh that element. You are entitled to know about it, you are entitled to take it into account, but as a matter of common sense and fairness may I stress to you it alone could not prove his guilty and you may think, although it is entirely a matter for you, that it is a marginal matter. It is significant but it is not central to your considerations. Please do not over stress it. It would be completely wrong to jump to the conclusion he is guilty just because of his bad character."
[16]The judge then went on to remind the jury of a point in the appellant's favour, namely that he had pleaded guilty on his previous appearances before the court. The judge then concluded as follows:
"So members of the jury, that is a direction on how to deal with evidence of bad character. I hope it wasn't necessary. I rather hope that you as ordinary normal citizens of this country would be instinctively inclined to the view that to give a dog a bad name is an unfair approach to the attribution of guilt in a criminal case but it is a factor you are entitled to consider."
[17]The question of whether or not bad character evidence falls to be admitted depends on the proper application of the relevant provisions of section 101 and section 103 of the Criminal Justice Act 2003. So far as relevant they are as follows. Section 101:
"(1) In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if— ... (d) it is relevant to an important matter in issue between the defendant and the prosecution..."
Section 103:
"(1) For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include— (a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence ... (2) Where subsection (1)(a) applies, a defendant’s propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of— (a) an offence of the same description as the one with which he is charged, or. (b) an offence of the same category as the one with which he is charged."
[18]Here it is common ground that the offence of taking a vehicle without the owner's consent of which he was convicted on 7th August 2001 fell in the same category as the offence of theft in the instant case, but that none of the other offences were either of the same description or of the same category within the meaning of section 103(2)(a) and (b). Section 101(3):
"(3) The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. (4) On an application to exclude evidence under subsection (3) the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged."
The respondent submitted that the evidence should be admitted because it related to an important matter in issue between the prosecution and the defence. The respondent submitted that such a matter went to the appellant's propensity to commit offences of the kind with which he was charged and that this was not a case in which it could be said that propensity was irrelevant. In other words, it was not a situation in which having such a propensity made it no more likely that the appellant was guilty of the offence.[19]The appellant's submissions were made in writing by Mr Payne and attractively elaborated in oral argument by him before us. In essence they were as follows. First, the offence of taking a vehicle without consent whilst in the same category as and bearing some similarity to the present matter could not be described as strikingly similar, or as sufficiently similar to have any notable probative value. Second, that the other offences, despite being concerned with vehicles, bore no resemblance to the instant offence in that they did not involve the taking, let alone the theft, of the vehicle. Thus they should not have been admitted. Thirdly, that the judge can have paid no or no sufficient regard to the length of time between the previous convictions, especially the 2001 conviction for taking a vehicle without consent. Had he done so, argued Mr Payne, he would not have admitted them under the test set out in section 101(4). Fourthly, that in so far as any of the previous offences may have had some minor probative value, the admission of the evidence had such an adverse effect on the fairness of the proceedings that they should have been excluded. In particular the evidence was used to bolster an unsatisfactory identification in relation to which there were a number of discrepancies and weaknesses. He submits that under all those circumstances not only was the judge's decision to admit the convictions wrong, but the effect was to render the conviction unsafe.[20]In reply, in written argument, the respondent submits that the period of four years elapsing between the 2001 conviction and the instant offence is not excessive especially when one takes into consideration that the appellant continued to commit vehicle-related crime thereafter. It is submitted that the offence of dangerous driving in 2004 was directly relevant since the thieves in the present case drove dangerously immediately before and after the offence. Third, the other vehicle-related convictions were by no means irrelevant as they showed that the appellant was prepared, where it affected motor vehicles, to commit habitual breaches of criminal law.[21]We have considered all these submissions with care. We bear in mind the words of the relevant sections of the 2003 Act. We also bear in mind the helpful remarks of Rose LJ, then Vice President of the Court, in Hanson and others [2005] 2 Cr.App.R 21. His remarks included the following:
"Old convictions, with no special feature shared with the offence charged, are likely seriously to affect the fairness of proceedings adversely, unless, despite their age, it can properly be said that they show a continuing propensity. There is no minimum number of events necessary to demonstrate such a propensity. The fewer the number of convictions the weaker is likely to be the evidence of propensity. A single previous conviction for an offence of the same description or category will often not show propensity."
Finally, we have considered a citation from paragraph 4 of Harrison relating to the importance of considering the question of admissibility on the basis of the actual issues in the case. The Vice President said that bad character legislation is designed:
"... to assist in the evidence based conviction of the guilty, without putting those who are not guilty at risk of conviction by prejudice. It is accordingly to be hoped that prosecution applications to adduce such evidence will not be made routinely, simply because a defendant has previous convictions, but will be based on the particular circumstances of each case."
[22]As it seems to us, the last passage is particularly germaine to the present appeal. In our judgment the application of section 101 should be carefully considered with the facts of the individual case in mind. An assessment can then be made of the extent, if at all, to which the previous offences could be regarded by the jury as relevant to the particular issues which they have to determine. Here there was the incident at about 8.00 in the morning of 23rd December 2005, the theft itself. The complainant identified the appellant as one of thieves. That identification was plainly important to the case but it did not stand alone. Two days later the appellant was found to be in the stolen car bearing false plates when it was involved in a crash. This further evidence in itself may be said to fund a prima facie case against the appellant based on recent possession, but it also provided support for Mrs Hutchence's identification evidence and vice versa.[23]What then of the relationship, if any, of the appellant's previous offending to the evidence relating to either or both of those incidents? As to the first incident, it is in our judgment significant that the individual identified by the complainant turned out to be a person who had habitually been involved in vehicle crime. Had the prosecution relied solely on a conviction or convictions for, by way of example, driving without insurance, it could be said that the connection between such an offence and the instant offence would have been tenuous. But it was not simply a matter of relying on previous convictions of that sort. Just over two years before he had driven dangerously and without insurance just as those who stole Mrs Hutchence's vehicle did. In our judgment it did not matter whether the appellant was the driver or the passenger of the stolen vehicle and of Mrs Hutchence's vehicle. The need to drive dangerously was inherent in the scheme to take her car. It should not be overlooked either that those who steal cars and drive them dangerously are by definition uninsured, thus doubly dangerous to the public. This appellant had no fewer than seven previous convictions for driving without insurance and if guilty was also party to such an offence in the instant case.[24]It seems to us therefore that the appellant's proven propensity to commit vehicle crime was plainly material as support for the complainant's identification in that it placed the appellant in a limited category of offenders who were substantially more likely to be engaged in stealing cars than would have been other members of the public at large. Consideration of the relevance of the evidence of previous offending does not in our judgment end there. It relates also to the incident on 25th December. Here the appellant's defence was that notwithstanding that the car had been stolen as recently as two days previously and had already been provided with false numberplates, he was an innocent passenger in the car, simply having been offered a lift by somebody he hardly knew. The jury assessing the merits of the appellant's case that he is an innocent accidentally caught up in a criminal venture would, in our judgment, be fully entitled to weigh in the balance previous offending of the kind admitted by the judge. Thus, as it seems to us, these offences were relevant to rebut the defendant's defence by similar process of reasoning to that which we have set out in relation to the identification issue. A person with relevant previous convictions found in a recently stolen car with false numberplates is someone who, as the jury were entitled to find, was substantially less likely to have been the subject of innocent misfortune than a random member of the public at large.[25]For those reasons we are satisfied that the previous convictions were relevant to the issues in the case. The judge may have been over generous to the appellant in commenting that the evidence was a marginal matter. Some of his remarks in directing the jury were arguably on the face of them contradictory. Overall, however, we have no doubt that the effect of his directions was by no means unfair to the appellant. Thus we are satisfied that the relevance of the bad character evidence was such that there was no adverse effect on the fairness of the proceedings. There is, in our judgment, no arguable criticism of the way in which the judge left the issue to the jury and no basis for saying that the conviction was unsafe. Accordingly, the appeal is dismissed.

Cited in 1 later judgment