Garnham, R. v [2008] EWCA Crim 266

Case No 2006/05225/D4

[2008] EWCA Crim 266

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Friday 1 February 2008

Between

R E G I N ACrown

The Strand

London

WC2A 2LL

B e f o r e:

LORD JUSTICE LEVESON

MR JUSTICE WILKIE

and

THE RECORDER OF LONDON

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

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- v -

Between

JAMIE RICHARD GARNHAM

__________________

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__________________

Mr A Williamson appeared for Appellant

Mr C Myatt appeared for Crown

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Judgment

As Approved by the Court

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[1]On 21 September 2006, in the Crown Court at Ipswich, before His Honour Judge Holt and a jury, the appellant was convicted of rape and sentenced to a term of six years' imprisonment. He now appeals against that conviction by leave of the full court.

[2]The facts can be briefly summarised. On the evening of Friday 10 March 2006 the complainant went to work as a prostitute in the area of Sir Alf Ramsey Way, Ipswich. When she arrived, police surrounded the area so she started to make her way home. At around 10.30pm at the junction of Handford Road and Handford Cut she met a male who introduced himself as "Paul". They agreed on a price of £20 for services and made their way to an alleyway off Elliot Street.

[3]Later the complainant alleged that she had been raped to a local resident who had heard a disturbance in the alleyway. Shortly afterwards, at around 11.05pm, the appellant was arrested in the vicinity as he matched the description that she gave. His trousers were undone, his belt unbuckled and his flies were down. In interview he denied raping the complainant. He said that she was a prostitute and that he had paid for sexual intercourse. When arrested he was found in possession of £23, although this money was not recorded by denomination.

[4]The complainant was medically examined. She had minimal bruising and grazes to her neck, head and face. There was no injury noted to her inner thighs.

[5]It was the Crown's case that the appellant raped the complainant as she alleged. They relied upon her evidence and that of the independent witness who said that she had opened her front door and heard screams of a woman in distress shouting, "Get off", and a male voice telling the female to shut up. Although she could not see clearly as it was so dark, she saw the male run off. The female immediately ran towards her crying and asked for help as she had been raped.

[6]It was the defence case that the sexual intercourse was consensual. The appellant denied using violence or forcing the complainant to have sexual intercourse against her will. He admitted not using a condom as this was his preference. It was his case that he did not ejaculate as he was put off by her telling him to hurry up. Further he said that the intercourse stopped as soon as she asked him to. She said that she had other customers to see and he walked away. He relied on the fact that nothing of any evidential value was found in the alleyway. It was the defence case that, if the complainant's account was true, there would have been something against the fence (hairs or the like) as evidence of a struggle.

[7]There was a very real issue not merely between the appellant and the complainant but also between the appellant and the independent eyewitness. It is difficult to see why, in the context of the case that the defence maintained, the complainant should have screamed in distress, why the male voice told her to shut up and why he would have run off such that immediately afterwards she was crying and asking for help. In any event, the issue for the jury was whether it was she that the appellant had sexual intercourse with the complainant without her consent as she alleged.

[8]It is unnecessary to descend into a further analysis of the evidence. The grounds of appeal relate to the approach of the trial judge to the issue of character. In relation to the complainant he refused leave to cross-examine her as to her 65 convictions for theft and other dishonesty (albeit ending in 2001). He observed that a propensity for dishonesty was not the same as a propensity to untruthfulness and that in the circumstances these convictions were not of substantial (if any) probative value. He observed that he did not think that these matters would affect the standing of the witness, although he was prepared to reconsider the position in relation to one conviction where the complainant might have been convicted after a trial. Mr Williamson (who appeared for the appellant below as he does in this court) did not pursue that matter. He believed that it would not present an accurate picture and did not justify the time that the necessary further research would take.

[9]In relation to the appellant, however, who volunteered to the jury that he had one conviction for assault occasioning actual bodily harm, the judge took a different view. He gave a modified bad character direction. That forms the second ground of appeal. We deal with them in turn.

[10]As to the first, Mr Williamson repeated the argument that he had advanced before the trial judge, that he was entitled to rely on section 100(1)(b) of the Criminal Justice Act 2003 ("the 2003 Act") on the basis that the credibility of the complainant was a matter of substantial probative value and was of substantial importance in the context of the case as a whole. Mr Myatt for the Crown conceded that credibility was of substantial importance in the context of the case as a whole but challenged the proposition that the previous convictions had substantial probative value in relation to the issue of credibility of this complaint of rape in these circumstances.

[11]Mr Williamson challenged that submission. In his skeleton argument he relied on the observations in R v Sweet-Escott 55 Cr App R 316, when Lawton LJ said that the test to be applied was whether or not the matter which it was sought to put to the witness would affect his likely standing with the tribunal of fact. Mr Williamson submitted that this test was approved by this court in R v Funderburk 90 Cr App R 466. Mr Myatt referred to R v S (Andrew)

[2006] EWCA Crim 1303

, where this court upheld a trial judge's refusal to allow a complainant in a rape case (who was also a prostitute) to be cross-examined on previous convictions for going equipped for theft, handling stolen goods and burglary. He also referred to R v Hanson

[2005] 1 WLR 3169

[2005] EWCA Crim 824

for the proposition that a propensity for untruthfulness was not the same as a propensity for dishonesty.

[12]We do not find reference to the old cases to be of real value and discourage their repetition. It is important to underline that the 2003 Act specifically legislated to provide restraint on the common law ability to cross-examine about previous misconduct simply for the purpose of impugning credit. The reasons given by the Law Commission for this restriction were the power of evidence of bad character to distort the fact-finding process, the need to encourage witnesses to give evidence and the need for the courts "to control gratuitous and offensive cross-examination of little or no purpose other than to intimidate or embarrass the witness or muddy the waters" (see paragraph 9.35 Law Com No 272).

[13]In R v Campbell

[2007] EWCA Crim 1472

[2007] 2 Cr App R 361

, the Lord Chief

Justice said at paragraph 24:

"The change in the law relating to character evidence introduced by the 2003 Act should be the occasion for simplifying the directions to juries in relation to such evidence. Decisions in this field before the relevant provisions of the 2003 Act came into force are unhelpful and should not be cited. Where evidence of bad character is introduced the jury should be given assistance as to its relevance that is tailored to the facts of the individual case. Relevance can normally be deduced by the application of common sense. The summing-up that assists the jury with the relevance of bad character evidence will accord with common sense and assist them to avoid prejudice that is at odds with this."

That observation, to which we shall later refer, was made in the context of a case concerning the introduction of a defendant's bad character. The observation is just as apposite, if not more so, in relation to the introduction of this type of evidence for witnesses.

[14]The trial judge expressed himself in terms that a propensity for dishonesty was not the same as a propensity for untruthfulness. It was for that reason that he was prepared to reconsider the matter if in relation to one conviction it was established that the complainant had given evidence on oath that had not been believed. Mr Williamson accepts in relation to the allegations of theft that the approach of the judge cannot be challenged. Indeed in argument this morning he conceded that there was considerable force in the contrary submission to that which he wished to adopt, as was evident from the decision of the Court of Appeal in Campbell.

[15]In the circumstances we have no doubt that it was open to the trial judge to conclude that evidence of dishonesty of the type that would assist the jury was not to be obtained from the complainant's previous convictions. His decision to refuse cross-examination on these convictions cannot in our judgment be said to be wrong. This ground of appeal fails.

[16]The second ground concerns the way in which the judge dealt with the appellant's conviction for assault occasioning actual bodily harm which he volunteered in evidence and which would otherwise not have been admissible at the behest of the prosecution. A concern should have evidenced itself to Mr Williamson given the approach of the judge to the fact of the potential not guilty pleas of the complainant's previous convictions. The appellant admitted not only the conviction but when cross-examined conceded that it followed a trial in which his defence of self-defence had been rejected. When the judge intimated that, because the appellant had been disbelieved on his oath, he intended to give a bad character direction, Mr Williamson submitted that Hanson warned against the dangers of concluding that one previous conviction could found propensity. He asked for a modified good character direction. Judge Holt rejected that approach. He made it clear that it would be a matter for the jury, but said that he would warn against the dangers of giving it too much importance. He then directed the jury in these terms:

"The first thing that he told you about -- or very soon into his evidence -- was that he has a previous conviction. Now that is something that does not usually happen. You are not usually told about previous convictions; cases are tried on the evidence and previous convictions are not normally evidence, and the reason juries are not normally told about them is really because it is human nature to say, 'Well, the defendant is a criminal and so he must have done it'. Now clearly that would be quite wrong; it would be convicting a person on prejudice and not on the evidence. However, having said that, you have been told by the defendant of his conviction for actual bodily harm in 1999. He has told you about it because he wanted to tell you all about himself and that he had nothing to hide and he explained this incident was when he was involved in a fight with his ex-girlfriend or ex-girlfriend's boyfriend and believed that he was acting in self-defence. The prosecution have a different slant; they say it is relevant for a different reason. He pleaded not guilty, he gave evidence, he was not believed, he was convicted and the prosecution say in these circumstances it is relevant as to whether he has told you the truth that on this earlier occasion he was disbelieved. Well, you decide if evidence about this previous conviction helps you. If you think it is right, you may take it into account when deciding whether or not his evidence to you has been truthful. A person with bad character such as this may be less likely to have told you the truth but remember that does not necessarily follow. It does not mean that he is incapable of having told you the truth in this trial. So it is for you to decide if and to what extent this conviction helps you assess whether he told you the truth in this trial."

It is worth observing that the judge did not direct the jury about the dangers of giving it too much importance.

[17]The issue of the appellant's character was returned to later in the summing-up.

The judge said:

"[The appellant] was followed by three witnesses who spoke about his character, two gave evidence orally and one whose evidence was read and you will use that character evidence to help you assess both his truthfulness and his likelihood to have committed this offence. Both those witnesses spoke to him being reliable, honest, never seen him violent or use bad language. But in cross-examination, certainly Mr Elvin and Mr Davidson, they were the ones who gave oral evidence, said they did not know that he used prostitutes and they were not aware of his ABH conviction."

[18]Mr Williamson relied on what was then paragraph 13-28 of Archbold as the basis for the advice that he gave the appellant to admit his previous conviction. He points to section 101(1)(b) of the 2003 Act, while recognising that section 101(1)(f) means that he would have to own up to his other convictions to correct what would otherwise amount to a false impression. The editors of Archbold go on to observe that the judge would be bound to give a character direction which may be slightly modified as compared with the standard two limb good character direction to which a defendant with no convictions giving evidence on his own behalf would be entitled. That view of the law is now reinforced by Campbell (supra). Having made the general observations to which we have previously referred, the Lord Chief Justice said:

"30. The question of whether a defendant has a propensity for being untruthful will not normally be capable of being described as an important matter in issue between the defendant and the prosecution. A propensity for untruthfulness will not, of itself, go very far to establishing the committal of a criminal offence. To suggest that a propensity for untruthfulness makes it more likely that a defendant has lied to the jury is not likely to help them. If they apply common sense they will conclude that a defendant who has committed a criminal offence may well be prepared to lie about it, even if he has not shown a propensity for lying whereas a defendant who has not committed the offence charged will be likely to tell the truth, even if he has shown a propensity for telling lies. In short, whether or not a defendant is telling the truth to the jury is likely to depend simply on whether or not he committed the offence charged. The jury should focus on the latter question rather than on whether or not he has a propensity for telling lies. 31. For these reasons, the only circumstances in which there is likely to be an important issue as to whether a defendant has a propensity to tell lies is where telling lies is an element of the offence charged...."

[19]Even without Campbell (but certainly having regard to it) we have no doubt that the trial judge erred in his approach. We conclude that the direction that he gave failed accurately to reflect the law; it deprived the appellant of an advantageous direction and replaced it with a modified bad character direction.

[20]We therefore turn to the question of the safety of the conviction. It is worth observing that in Campbell, notwithstanding the misdirection, the court did not consider that the jury was led astray.

[21]What was the evidence before the jury in this case? There was the evidence of the complainant, supported by the witness who heard and saw her immediately after her dealings with the appellant. There was the evidence of the appellant, his reaction to the police and his own evidence. The jury knew that his only conviction concerned an assault. It is important, however, to underline that this conviction would never have seen the light of day had it not been for the view that Mr Williamson took, not only of paragraph 13-28 of Archbold, but also the observations of the trial judge to which we have referred. Whether he would have continued to maintain and call the character witnesses given the inevitable cross-examination about the use of prostitution is another matter.

[22]At the end of the day the jury had to assess the credibility of the witnesses whom they heard. What material the appellant could amass as to his credibility in the context of this case was undeniably important. Although we have no doubt that this case had features of real strength about it, we believe that for a man of effective good character (disregarding his spent conviction for assault) not to have had the benefit of a modified good character direction was significant. We are not prepared in those circumstances to conclude that this conviction is necessarily therefore safe and it will be quashed. MR MYATT: My Lord, I apply for a retrial. MR WILLIAMSON: My Lord, in my submission, a great deal of time has passed since the alleged offence and it would not be in the public interest to order a retrial in this matter.23. (The court retired for a short time) LORD JUSTICE LEVESON: We have concluded that it is appropriate to order a retrial. MR WILLIAMSON: My Lord, the question therefore arises as to whether the court wishes to exercise its power to grant bail pending that retrial. He had been on bail prior to the original conviction. In my submission, he should be granted bail. LORD JUSTICE LEVESON: What is the attitude of the Crown to that? MR MYATT: My Lord, he was on bail -- LORD JUSTICE LEVESON: How quickly could this retrial take place? MR MYATT: My Lord, I do not know, but of course as quickly as possible. I do not know what the lists are like at Ipswich, but I would hope as quickly as possible. LORD JUSTICE LEVESON: We shall not grant bail today, but we shall allow an application to be made to the judge in Ipswich. The concern is that this is a very, very serious allegation and must be treated as such. Much may depend upon how quickly a retrial could be mounted. If, for example, it could be heard very, very quickly then the disruption to all sorts of people in certain circumstances would be real. I am sure you understand exactly what I mean. MR WILLIAMSON: I do. LORD JUSTICE LEVESON: Thank you. We shall allow the appeal and quash the conviction. The defendant must be tried again on the count of rape which was quashed. We direct that a fresh indictment must be preferred. The defendant must be re-arraigned on the fresh indictment within two months of today, but we express the hope that the matter can be listed before a judge at the Crown Court at Ipswich as soon as possible in order that an early retrial can be fixed and an application then considered, if it is appropriate, for bail. In the meantime we direct that the defendant remain in custody. We grant a representation order for the retrial, assuming Mr Williamson asks for one? MR WILLIAMSON: My Lord, I do.

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