Hassett, R. v [2008] EWCA Crim 1634

[2008] EWCA Crim 1634

Case Nos. 2007/03111/C2, 2007/05788/C2 & 2007/04927/C2

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Friday 27 June 2008

The Strand

London

WC2A 2LL

B e f o r e:

LORD JUSTICE MAURICE KAY

MR JUSTICE PLENDER

and

THE RECORDER OF NOTTINGHAM

(Sitting as a Judge of the Court of Appeal, Criminal Division)

Between

R E G I N ACrown

- v -

Between

KEVIN HASSETT

RICHARD JOHN CHRISTIAN HASSETT

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Mr N Topolski QC and Mr S Robinson

appeared for Appellant Kevin Hassett

Mr C Whitehouse appeared for Applicant Richard Hassett

Mr B O'Toole appeared for Crown

J U D G M E N T

[1]Richard John Hassett (now aged 32) and Kevin James Hassett (now aged 27) are brothers. On 30 April 2007, in the Crown Court at Snaresbrook, before Miss Recorder Lees and a jury, they were both convicted by a majority of 10:2 of offences of robbery and false imprisonment. Richard Hassett was acquitted on a count of witness intimidation. Each received sentences of imprisonment for public protection on the robbery and false imprisonment matters, with a minimum term in Richard's case of four years and in Kevin's case of three years and six months. They each appeal against conviction, leave having been granted by the single judge in Kevin's case, and Richard having been granted leave, coupled with an extension of time (three months and 21 days), by us earlier today.

[2]The events which form the background to the case occurred on 14 and 15 June 2006. The complainants, Daniel and Kane, are also brothers. They are young men of good character and, according to the evidence, both are homosexual. They lived separately from each other but only about half a mile apart. Kevin and Richard Hassett (to whom from now on we shall refer only by their first names) are hetero-sexuals. Until 14 June the two sets of brothers had not met.

[3]On the evening of 14 June, Richard fell into conversation with Daniel outside a public house in east London. Daniel offered Richard a bed for the night at his flat and Richard took up the offer. On the following day Richard telephoned Daniel to invite him to join him and his brother Kevin for a drink. Daniel contacted his brother Kane and the four of them met up at the same public house. From there they moved to Daniel's flat in the late afternoon in order to watch a football match on the television. Alcohol was consumed by all parties both at the public house and in the flat.

[4]Where the description of events parts is at a point in the flat when, according to Daniel and Kane, Richard and Kevin became verbally aggressive. Kane's head was pulled back and a razor, which had been obtained from the bathroom within the flat, was put to Kane's throat. Serious threats of violence were issued. Daniel and Kane feared that, unless they did as they were told, the razor would be used on Kane's neck. According to them, Daniel was then taken on foot by Kevin to a cash point machine and made to withdraw cash whilst Richard remained in the flat with Kane. As Kevin escorted Daniel to the cash point machine, Daniel felt something with a point digging into his side. Further threats were issued. Daniel obtained £50 from the machine. When the two returned to the flat it was made clear that that was not enough money. Richard and Kevin both took Daniel back to the bank. They ordered Kane to remain at the flat under serious threat. On that visit to the bank Daniel again felt something digging into his side. This time he was made to withdraw £100, which he handed to the two appellants.

[5]The false imprisonment was the containment in the flat in order for the robberies to be successfully executed. Daniel only handed over the cash because of the threats that had been made.

[6]That brief description of the account given by Daniel and Kane was accepted by the jury. The jury did not accept Daniel's account that in the course of a single telephone conversation two or so days later Richard had intimidated Daniel in relation to his potential capacity as a witness.

[7]The appeal to this court raises questions about the decision of the Recorder to admit in evidence the bad character of Richard and Kevin. When the case first came into court on 23 January 2007 the judge who conducted the plea and case management hearing directed that any bad character application to be made by the prosecution should be served within twenty-one days -- that is by 13 February 2007. No such application was made within that period, or indeed at all, until the first day of the trial. On that occasion counsel came along with such an application. It necessarily sought an extension of time. It stated the reasons for applying for an extension of time in these terms:

"The question of making this application was reviewed on 18 December [2006] and a decision was made in principle to investigate further, but the matter was subsequently overlooked."

No allegation has been or could be made that this was a deliberate manipulation of the procedure by the prosecution. Plainly it was the result of inefficiency and oversight.

[8]The Recorder heard the application on the first day of the trial. It was vigorously opposed. She nevertheless ruled that the prosecution should be permitted to adduce the evidence of bad character, although she did not give her reasons for that until late in the trial (almost immediately after the summing-up).

[9]At this stage it is necessary to refer to the previous convictions of the appellants which were the subject of the Recorder's ruling. So far as Richard is concerned, the Recorder admitted evidence of the following convictions:(1) robbery and attempted robbery on 27 October 1995;

(2) possession of an offensive weapon (a kitchen knife) on 18 February 1998;

(3) unlawful wounding on 6 January 1999;

(4) common assault on 8 March 2003;

(5) possession of an offensive weapon (a knuckle duster) and of assaulting a constable on 28 September 2006.

[10]So far as Kevin was concerned, the convictions were:(1) unlawful wounding on 6 January 1999 (a joint offence and the one referred to in Richard's list of convictions bearing the same date); and

(2) possession of an article with a blade or point in a public place on 3 July 2001.

[11]This material, which went before the jury, was presented by way of written admissions at a late stage in the prosecution case. In relation to the joint unlawful wounding it included the additional admission that the two brothers had committed a joint offence of wounding a male previously unknown to them in a public place by Richard punching him and Kevin stabbing him once in the neck. They both pleaded guilty to that offence.

[12]So far as Kevin's conviction for possession of a bladed article was concerned, the admission went on to state that he had had a kitchen knife in a road and had used it to inflict a five to six inch wound on his own left arm at a time when he was experiencing depression and was in distress. He was arrested and interviewed. He made full admissions and pleaded guilty.

[13]We turn to the statutory provisions which relate to this aspect of the case. The law has undergone radical change in the Criminal Justice Act 2003. Section 101(1) provides that in criminal proceedings evidence of the defendant's bad character is admissible if but only if certain conditions are satisfied, one of which is:

"(d) it is relevant to an important matter in issue between the defendant and the prosecution"

Another is:

"(g). the defendant has made an attack on another person's character."

Section 101 goes on, where relevant, to state:

"(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."

[14]So far as gateway (d) is concerned, section 103(1) is important. It provides:

"For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include -- (a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence; (b) the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant's case is untruthful in any respect." 18. " (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."

Provision is then made for categorisation. No issue arises as to that in this case, it being common ground that the previous offences were at least of the same category as the ones charged in the present case.

[15]Those are the primary statutory provisions. The procedure is to be found in the Criminal Procedure Rules 2005, Part 35. By Part 35.4 a prosecutor who wants to introduce evidence of a defendant's bad character must give notice in the form set out in the Practice Direction. By rule 35.4(2) in a case proceeding in the Crown Court the notice must be given not more than fourteen days after the committal of the defendant or the consent to the preferment of a Bill of Indictment in relation to the case in compliance with similar provisions applying to notices of transfer.

[16]Notwithstanding the use of the mandatory would "must", rule 35.8 empowers the court to shorten a time limit or extend it, even after it has expired. Plainly in the present case the extension of time on 23 January was a result of the decision under rule 35.8 and thereafter, following non-compliance, when the matter came before the Recorder it was a further application of rule 35.8 that had to be addressed by her.

[17]The Recorder gave a detailed ruling. At an early stage in it she referred to the submission made on behalf of the defence that the reasons given by the prosecution for the delay, namely "oversight" were unacceptable. She said this:

"I find that the reasons given are indeed unacceptable, but that is not the test I must apply. In considering whether it is in the interests of justice for these matters to be admitted in evidence I must consider whether there is any real prejudice to either defendant caused by the lateness of the application."

The Recorder then appropriately referred to the overriding objective of the Criminal Procedure Rules, namely that criminal cases be dealt with justly, and to different aspects of that requirement as set out in rule 1.1(2), including (a) acquitting the innocent and convicting the guilty; (b) dealing with the prosecution and the defence fairly; and (e) dealing with the case efficient and expeditiously.

[18]The first of the submissions made with the utmost eloquence to this court by Mr Topolski QC (who did not appear at the trial but who represents Kevin today) is that the Recorder fell into legal error in the passage of her ruling to which we have referred. He submits that, having found the delay to be "unacceptable", the Recorder put that on one side. Having described it as "not the test I must apply", she went on to consider the interests of justice and prejudice separately from the finding of unacceptable delay.

[19]At this point it is important to remind ourselves of the basis upon which this court has power to interfere with the decision of a trial judge on such matters. In the leading case of R v Hanson [2005] Cr App R(S) Rose LJ (the then Vice-President of the court) said at paragraph 15:

"If a judge has directed himself or herself correctly, this Court will be very slow to interfere with a ruling either as to admissibility or as to the consequences of non-compliance with the regulations for the giving of notice of intention to rely on bad character evidence. It will not interfere unless the judge's judgment as to capacity of prior events to establish propensity is plainly wrong, or discretion has been exercised unreasonably in the Wednesbury .... sense."

[20]Before leaving the authorities it is instructive also to refer to the case of R(Robinson) v Sutton Coldfield Magistrates' Court

[2006] 2 Cr App R 13

, where the Divisional Court was considering the power to extend time conferred by rule 35.8. A submission had been made that such an extension should only be granted in exceptional circumstances. The Divisional Court rejected that fetter on the discretion of the court, preferring the formulation that in the exercise of its discretion the court must take account of all relevant considerations, including the furtherance of the overriding objective. Owen J, with whom Hallett LJ agreed, went on to say:

"15. In this case there were two principal material considerations: first the reason for the failure to comply with the rules. As to that a party seeking an extension must plainly explain the reasons for its failure. Secondly, there was the question of whether the claimant's position was prejudiced by the failure. 16. .... A party seeking an extension cannot expect the indulgence of the court unless it clearly sets out the reasons why it is seeking that indulgence. But importantly, I am entirely satisfied that there was no conceivable prejudice to the claimant ...."

[21]Finally, in R v Musone

[2007] 2 Cr App R 29

, Moses LJ said:

"37. The Act .... gives power to the judge to prevent that which, in the judge's assessment might cause incurable unfairness either to the prosecution or to a fellow defendant. Plainly, the procedural rules should not be used to discipline one who has failed to comply with them in circumstances where unfairness to others may be cured and where the interests of justice would otherwise require the evidence to be admitted. But, there will be cases in which the judge can properly deploy [the provision], not merely as a matter of discipline but to prevent substantial unfairness which cannot be cured by an adjournment."

Although that observation was not made specifically in relation to the bad character provisions, it is equally germane to them.

[22]The authorities have made clear on a number of occasions that the important task which falls on the trial judge must be carried out with a very close scrutiny of all the circumstances to ensure that unfairness is avoided.

[23]Having regard to those legal propositions, which are common ground in this case, we return to Mr Topolski's criticism, which is adopted by Mr Whitehouse on behalf of Richard, that the Recorder fell into legal error by leaving the finding that the delay was unacceptable out of her consideration of the interests of justice. In our judgment, that is not a sustainable submission. It depends on a pedantic interpretation of the language used by the Recorder. It is plain to us that in the passage to which we have referred, the Recorder carried out precisely the approach that had been referred to in Robinson when she said that the unacceptable delay "is not the test". Plainly she meant that it was not the sole test. On the authorities that is abundantly clear. It was a factor. No one takes a kindly view of unexplained delay. It seems to us that, far from being left out of her consideration, thereafter the Recorder took it into account; but when everything was put into the scales she came to the conclusion that, following a consideration of possible prejudice, the interests of justice came down in favour of the admission of the evidence. In our judgment that passage in the ruling does not contain any legal error.

[24]Thereafter, this appeal is concerned with the findings on prejudice or a lack of prejudice. On these matters the running has been made by Mr Topolski on behalf of Kevin for the obvious reason that he is more lightly convicted. There is one aspect of the case which calls for specific consideration. The point that was raised on behalf of Kevin at trial, and is advanced again today, is that the conviction in relation to the bladed article in 2001 ought not to have been admitted because it did not go to propensity. Moreover, it is suggested that he was disadvantaged by the lateness of the application in relation to that because if he had had proper warning of it he would have sought to adduce evidence of his circumstances and personal difficulties that existed at the time of that offence.

[25]In our judgment those submissions cannot succeed. The test for propensity is not the same as the test for similar fact evidence at common law. Counsel for both appellants have sought to emphasise dissimilarities from not only the bladed article conviction, but the other convictions as well. However, in our judgment, the Recorder was entirely justified and correct to find that all the admitted matters came within the statutory criterion for propensity which, as we have said, is not the same as, or as strict as, existed at common law for similar fact evidence.

[26]It is suggested that the admission that the knife was used only for self-harm and in the circumstances described negatives a propensity. However, what it does not do is to negative a propensity to carry a knife on the public highway, notwithstanding that it was ultimately used for only self-harm. The circumstances of the present offence, and in particular the taking of Daniel twice to the cash point, includes evidence of a sharp article being put against his abdomen. Indeed there was evidence that he had shown his brother a wound mark as a result of that. Accordingly, we find no error in the Recorder having concluded that the propensity test was satisfied in relation to that article.

[27]It is further submitted on behalf of Kevin that, even so, he was disadvantaged by his inability to call further evidence about it as a result of the lack of notice. We see nothing in that point at all. The prosecution formally admitted that the knife was used only for self-harm and that at the time Kevin was experiencing depression and was in distress. Kevin gave unchallenged evidence about it, including evidence of his domestic circumstances at the time which had led to depression and distress. It is difficult to see what further evidence could have taken the matter much further.

[28]All these matters were looked at very carefully by the Recorder in a long passage at pages 59 to 60 of the transcript. She explained that she had considered whether to admit the evidence by reference to the considerations set out in Hanson. She said that she had applied the criteria to each offence individually and had looked at them together in respect of each defendant. She had considered whether the history of the convictions established a propensity to commit the offences of the kind charged. She had considered whether the propensity made it more likely that the defendant committed the offence charged and she had found that it was not unjust to rely on the convictions of the same description or category. Nor was it unfair to admit them. She said:

"I find that it is not unjust to do so and their admission will not make the proceedings unfair. In forming this judgment I have exercised my discretion mindful of the interests of justice and with regard to any genuine unfairness which might be caused to either defendant by the admission of this evidence and I find that there is none."

That finding as far as Richard was concerned was anticipated by counsel then appearing for him because in the course of submissions he had "realistically conceded" that there was no real prejudice in his case. We are entirely satisfied that the Recorder approached the matter appropriately and gave a careful ruling to which we pay tribute.

[29]There is another aspect to this part of the case to which reference ought to be made. The application upon which the Recorder had ruled at the commencement of the trial was made on the basis of gateway (d), leading ultimately to the issue of propensity. By the time she gave her reasons for ruling in favour of the prosecution late in the trial, she had also rejected a later application by the prosecution, after the defendants had given evidence, to introduce further convictions under gateway (g), it being submitted by the prosecution that both defendants through their counsel had attacked the character of the prosecution witnesses. In the event she did not permit reference to any further convictions (those in issue were matters of theft and criminal damage). She said that she would not permit the admission of any further convictions over and above those which had already been allowed in as evidence of propensity. However, she went on to say:

"I will however be directing the jury that the convictions which they will hear about go not only to propensity but also to credibility in respect of both defendants."

In other words, whilst she refused to allow further convictions to be admitted under gateway (g), she accepted that, after all the evidence, that which had been admitted by reference to gateway (d) was also relevant now to gateway (g). There is authority permitting such an approach: see R v Highton and Others

[2006] 1 Cr App R 7

. We are familiar with that kind of forensic development.

[30]It may be unfortunate that the Recorder gave her reasons for her previous rulings only after she had summed the case up to the jury. However, that, in our judgment, does not undermine the safety of the convictions in any way.

[31]Mr Topolski sought to raise another issue (not prefaced in the grounds of appeal) to the effect that the Recorder went too far in her summing-up when, on the issue of the relevance of bad character to credibility, she referred to the fact that Richard had on occasions pleaded not guilty but had been found guilty. On that she said:

"Not only has he committed offences in the past but he has also lied in the past on oath, that is to say he has pleaded not guilty, for example, to some of those offences but gave evidence in his own defence and was convicted. So plainly he was not believed."

[32]We do not consider it appropriate to carry out any further investigation into this aspect of the case. Plainly there was evidence that Richard had on occasions pleaded guilty. It seems from the summing-up that he disputed the correctness of some of his previous convictions; he asserted that, although convicted, he was in fact innocent. We do not have the full material which was available to the Recorder when she expressed herself in that way. We do not know the detail of what was said by Richard in evidence and we are wholly unpersuaded on the material that we do have that the Recorder said anything which can properly now be made the subject of criticism -- at least without further material to support that criticism, of which there is none.

[33]Finally, we refer to another matter raised on behalf of the appellants which warrant consideration. The first is that it is submitted on behalf of both that a relevant factor in admitting such evidence of bad character, particularly when it is as colourful as a previous joint offence involving a stabbing, is in the strength of the prosecution case. It was submitted by Mr Topolski and Mr Whitehouse that this was not a strong case. We do not suggest that a consideration of the strength of the case was or is now inappropriate, but we are unable to agree with counsel in their assessment of the strength of the case. Whilst it depended on the credibility of Daniel and Kane, there were other features of the case which went to support their account. Most significant among those, in our judgment, was the undisputed evidence of withdrawals from the cash point machine at the times and in the amounts referred to by the brothers. True it is that evidence was given and elicited that the withdrawing of such sums of money with such frequency was a feature of the operation of the account; but the cogent feature of that evidence was that it fitted entirely with what was described by Daniel and Kane. It seems to us that it would be quite extraordinary if they had chosen to weave a fabricated account around two innocent withdrawals that were consistent with previous innocent withdrawals. They were persons of good character. One of the appellants (Kevin) had lied in his interview on significant matters. Richard had declined to answer questions in interview and there were other aspects of the evidence to which the prosecution drew (and draw) attention which can properly be said to have been supportive of the case.

[34]In summary, therefore, we have come to the conclusion that these appeals, though well argued, are unsustainable. As a final throw of the dice Mr Whitehouse suggested that, even if we came to the conclusion that the Recorder's decision to admit the evidence was unassailable, with the benefit of hindsight in this court we should now conclude that the convictions were unsafe. That, it seems to us, is a wholly unsustainable submission. There were points that could be and no doubt were properly made to the jury by highly skilled counsel in this case. Some of them have been repeated to us. However, this was ultimately a matter for the jury. It did not receive any material which it ought not to have received. It was directed by a summing-up which we consider to be faultless.

[35]For all those reasons the appeals against conviction are dismissed. MR TOPOLSKI: My Lord, thank you. There were, by the second set of counsel to be involved in this case, appended to the conviction appeal grounds of appeal against sentence. Leave has not been granted in relation to that. I do not seek leave. It seems to me -- and I have given this advice down the line -- that the sentence is unarguable. LORD JUSTICE MAURICE KAY: That is very realistic, Mr Topolski. If it is of any comfort, we have come to the same conclusion. Mr Whitehouse, is your position the same? MR WHITEHOUSE: My Lord, there is no application in relation to sentence. 40. ____________________________