Dhooper, R. v [2008] EWCA Crim 2892

[2008] EWCA Crim 2892No: 200702271/D3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 17th October 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE DYSON
MR JUSTICE MCCOMBE
Venue THE RECORDER OF CARDIFF
(HIS HONOUR JUDGE NICHOLAS COOKE QC)
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
AVTAR SINGH DHOOPER
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 D Clark appeared for AppellantMr P Farrer QC appeared for Crown
J U D G M E N T

LORD JUSTICE DYSON:

On

[1]27th March 2007 at Wolverhampton Crown Court the appellant was convicted of manslaughter (count 1), assault occasioning actual bodily harm (count 3) and false imprisonment (count 4). The jury was discharged from giving a verdict on count 2, assault occasioning actual bodily harm, which was an alternative charge. He was sentenced on 4th June 2007 to imprisonment for public protection with a minimum term of 42 months in respect of count 1 and to the same sentence for count 4, the two sentences to run concurrently. No separate penalty was imposed for count 3. He appeals with the leave of the full court.[2]The manslaughter charge arose from the death of Gurdev Singh, following injuries received on the night of 13th/14th February 2006. The charges of false imprisonment and assault occasioning actual bodily harm related to a dispute on the night of 24th/25th February 2006 between the appellant and one Shamsher Uppal.[3]The appellant is an alcoholic who associated with other Asian alcoholics in Wolverhampton, including Gurdev Singh. On 13th February 2006 the appellant's neighbour overheard a disturbance in the appellant's house which involved the appellant, Gurdev Singh and a third man called Churn. He heard the appellant using abusive language and the sound of blows. The following morning Gurdev Singh was found unconscious outside the appellant's house. He had suffered extensive injuries, including a head injury and 10 fractured ribs as a result of numerous blows to the head and body. Gurdev Singh was already in very poor health, suffering from diabetes and cirrhosis of the liver. On 25th February 2006 he died in hospital of multiple organ failure following septicemia. It was the Crown case that the injuries he received in the assault accelerated his death.[4]In his police interview the appellant claimed that the blows had all been struck by Churn and that he had been too drunk to stop the fight and that he had insisted that the two men leave the premises.[5]The offences which were the subject of counts 3 and 4 occurred on 24th February 2006. Shamsher Uppal met the appellant in an off-licence. The appellant was very drunk and Mr Uppal agreed to take him home. Shortly afterwards Churn, who was unknown to Mr Uppal, arrived. Churn and the appellant accused Mr Uppal of taking the appellant's money and cashbook. The Crown alleged that both men had then hit Mr Uppal on the head with a hammer and locked him in the house. His SIM card from his mobile telephone was removed and he was not allowed to leave the premises until 6.00 pm the following evening. Mr Uppal told the shopkeeper in the off-licence what had happened to him that day and made a formal complaint to the police on 16th March 2006. Again, the appellant denied assaulting Mr Uppal, or seeing Churn assault him. He said that he did not imprison him against his will.[6]The appellant had a previous conviction for manslaughter on 17th February 1994 in respect of a death caused on 18th June 1993. The prosecution sought to adduce evidence of this conviction under section 101(1)(d) of the Criminal Justice Act 2003, as being relevant to an important matter in issue between the appellant and the prosecution. It was argued that there were important similarities in the appellant's conduct in relation to these three incidents. These similarities were that in each case the victim was the appellant's friend, in each case the attack took place in the living room of the appellant's house, in each case the appellant had been drinking with the victim, in each case the appellant was drunk, in each case violence was preceded by a lengthy period of aggressive shouting, in each case the violence involved repeated blunt force blows to the arms, chest and head, in each case the violence continued despite pleading by the victim and in each case the appellant's first reaction was to blame a third party.[7]Counsel for the appellant opposed the admission of this evidence, arguing that the offence had taken place so long ago that it could not be considered relevant at all, alternatively the prejudicial effect of admitting the evidence would outweigh its probative value. The trial judge ruled that the evidence was admissible. In his ruling he said that the Crown had stated that the three sets of offences taken together demonstrated a pattern of behaviour unusual and significant, so significant as going directly towards establishing what had happened in respect of count 1. There was a further submission on the basis of sections 101(1)(d) and 103, that there was established by the three offences a propensity in the appellant to behave in the manner in which it was alleged by the Crown that he had behaved although, as Mr Farrer, who appeared for the Crown below as he has done this morning, conceded that the case based on propensity was very much a subsidiary basis for seeking to adduce the evidence.[8]The central part of the judge's ruling is in the following terms (page 2G):
"The defence concede the similarities and invite me to say principally that because the consequence of the unlawful behaviour in 1993 is so old it is not relevant, but if it is relevant then because death was the result the prejudicial value of that becomes such that it outweighs it probative value. The defence make no admission in respect of the 1993 matters so it is not open to me to consider whether the prosecution could have relevant material before the jury without them knowing of the conviction and so I must look at this stage at relevance. I have no doubt that the behaviour of the defendant in 1993, evidence of which gave rise to his conviction in February of 1994, is relevant to the issues before the jury in this case principally as to whether he did an unlawful act, namely by himself or jointly participating in assaults in count 1 and count 3. I have gone on to consider whether under Section 101(3) I should refuse to admit the evidence on the basis that it would have such an adverse effect on the fairness of the proceedings that it should be excluded. I have had regard to the relative probative value and prejudicial value of such evidence, and as to the warnings that will have to be given to a jury about its effect, and in all of the circumstances I am unable to say it would have an adverse effect on fairness that I should exclude it. Therefore, the evidence will be admitted in a trial where the indictments have been joined."
[9]The relevant statutory provisions are well known but it is important to set them out. Section 101(1), which deals with the admissibility of a defendant's bad character provides for circumstances in which evidence of bad character is admissible and it includes "(d) it is relevant to an important matter in issue between the defendant and the prosecution."[10]Such matters can include, by virtue of section 103(1)(a):
"the question whether the defendant has a propensity to commit offences of the kind with which he is charged..."
Section 101(3) provides:
"The court must not admit evidence ... if ... 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."
Section 101(4) provides:
"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."
[11]On 23rd March 2007 the judge was asked by the Crown to rule on the admissibility of summaries of interviews that had been conducted in the proceedings which had culminated in the conviction of the appellant on 17th February 1994. The Crown wished to adduce this evidence in order to identify features of that earlier conviction which were said to be similar to features in the later alleged offences. The judge acceded to that application and said:
"...when I initially gave a ruling to admit not only the conviction but the features of the conviction I did so on the basis that this information would be part of it. In doing so I had considered Section 101(3) as to whether its admission would have an adverse affect on the fairness and I took the view then, as I do now, that it would not."
There was then discussion about whether the interviews provided the totality of the account of the defendant in respect of the earlier proceedings. Counsel for appellant drew attention to the fact that there was no transcript of the judge's summing-up, but there was the judge's notebook from the trial and the judge's notes of the defendant's evidence.

The judge said:

"I have remarked in generality that his evidence from the judge's note, which is a very full note, apparently does not appear to be significantly different from the account set out in the final interview he had with the police. But it would be appropriate, if there were felt to be any significant differences, for the judge's note also to be incorporated as an account, which was a record made under a duty of the defendant's evidence at trial, so that the full picture can go before the jury. If there was a summing up the note book is the document from which the judge would have drawn his remarks in summing up. He would have had no other source of information beyond that which we have and his own notes. So it is a document which can properly considered a reliable document for those purposes. If there were any feature of the defendant's account at trial which the defence thought ought appropriately to go before the jury, along with the interviews, then it should."
[12]On behalf of the appellant it is submitted first that, in so far as the judge ruled that the previous conviction showed that the appellant had a propensity to commit offences of the kind with which he was charged, he was wrong to do so; secondly, that the circumstances of the previous offence did not have the hallmark of compelling features which were relevant to the question whether he was guilty of the two offences with which he was charged and the judge therefore should not have admitted the evidence on that basis; thirdly, and in any event, the judge should have refused to admit the evidence, whether on the basis of propensity or otherwise, on the grounds that its admission would have such an adverse effect on the fairness of the proceedings that it ought not to have been admitted.[13]As we indicated at the outset of counsel's submissions this morning, we had provisionally formed the view that his third submission was correct for a particular reason to which we shall shortly come. We therefore called upon Mr Farrer QC to deal with that point. Having heard his submissions, we remain of the view that the judge was wrong to admit the evidence on the grounds that his decision on the adverse effect on the fairness of the proceedings was wrong. Accordingly we did not hear argument on the other aspects of the matter.[14]As we have seen from the judge's ruling, he said that he had regard to the relative probative value and prejudicial effect of the evidence and concluded that "in all the circumstances" it would not have such an adverse effect on fairness that he should exclude it. But he made no reference to section 101(4), which required him to have regard in particular to the length of time between the matters to which the evidence related and the matters which formed the subject matter of the offences charged. In our view, the judge was required to make an assessment of the significance of that period of time from two perspectives. First: what effect if any did the passage of time have on the significance and probative value of the earlier offence? Secondly, the longer the interval of time, the more difficult it is likely to be for a defendant to be able to explain and otherwise deal with the circumstances of the previous offence.[15]Mr Farrer, if we may say so, sought to resist the appeal on this aspect with considerable skill, particularly having regard to the fact that the point to which we have just referred was not identified in the grounds of appeal or the skeleton argument. He accepts that the judge should have referred to section 101(4) and should have explicitly addressed the question of the interval of time.[16]He submits, however, that the judge must be taken to have had section 101(4) in mind because, as we have already seen from the ruling itself, the principal submission on behalf of the defence was that because the 1993 offence was "so old", it was not relevant, but that if it was relevant, then its prejudicial effect outweighed its probative value. The fact that this was the defence principal submission, submits Mr Farrer, must mean that when the judge reached his conclusion as regards relative probative value and prejudicial effect, he had in mind and had regard to section 101(4).[17]We cannot accept this submission. Section 101(4) is an important provision. It recognises that for the reasons that we have already stated, where a long interval of time passes between the event which are the subject of the bad character evidence and the events which are the subject of the offence, then depending on the facts of the case, this may suggest that the admission of the evidence would have an adverse effect on the fairness of the proceedings. That is the reason why Parliament decided to require the court to have regard in particular to the length of time when making its assessment on the question of whether or not 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.[18]It is essential for a court to have regard to the length of time particularly in cases where it is substantial as it was in the present case. Moreover, it is not sufficient for a judge simply to state baldly that he or she has had regard to the length of the interval of time, in a case where the interval is a long one and where the risk that it will have an adverse effect on fairness may be a real one.[19]There was plainly a real risk in the present case that the length of time of 13 years would have such an effect. If the judge was proposing nevertheless to admit the evidence, he had to grapple with the length of time and explain why, despite the passage of 13 years, admission of the evidence would nevertheless not have an adverse effect on the fairness of the proceedings.[20]In our view, by failing to do this, the judge omitted to have regard to a material consideration. We are therefore not constrained not to interfere with his ruling by the observation of Rose LJ, the Vice-President, in R v Hanson [2005] 2 Cr App R(S) 305, paragraph 15. What Rose LJ said was:
"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 noncompliance with the regulations... It will not interfere unless the judge's judgment as to the capacity of prior events to establish propensity is plainly wrong, or discretion has been exercised unreasonably in the Wednesbury sense..."
It is true that these remarks were in relation to a propensity case; but, in our judgment, they have equal application to a case where a ruling is given as to the admissibility of bad character evidence for other reasons. In our judgment, the judge did not direct himself correctly in the present case. Accordingly the warning that this court should be very slow to interfere does not apply.[21]Realistically foreseeing the possibility we would reach the conclusion that we have just stated, Mr Farrer submits that it is clear that, even if the judge had given proper attention to section 101(4), he would inevitably have reached the same conclusion. If we were satisfied that the judge would have reached the same conclusion, then we would have acceded to Mr Farrer's submission and concluded that the error in the judge's ruling did not affect the safety of the conviction. We would have had to consider the other arguments advanced on behalf of the appellant. But we are not persuaded that the position is as clear as Mr Farrer submits. He contends that the evidence of the similar features of the previous offence was highly probative and that the similarities were so strong that the judge would inevitably have concluded that, despite the passage of 13 years, the admission of the evidence would not have had an adverse effect on the fairness of the proceedings. We do not agree. It seems to us that, although there plainly were similarities, they were not as strong as Mr Farrer submits. We think that, if the only ground of appeal had been that the judge had been wrong to regard the similarities as being sufficiently cogent to render the previous conviction admissible, then bearing in mind paragraph 15 of Hanson, we would have been inclined not to interfere with that assessment. But this was by no means as strong a case as Mr Farrer submits.[22]We are not satisfied that, if the judge had directed himself correctly and addressed the impact of the interval of 13 years, he would necessarily have reached the same conclusion. In these circumstances the ruling cannot be saved and the verdicts are unsafe and the convictions must be quashed.[23]We should say that we did not hear argument on the question of whether the evidence as to the interviews should have been admitted. But it seems to us that the admissibility of the interviews marched to some extent hand in hand with the admissibility of the evidence of the previous conviction. There were additional objections taken on behalf of the appellant as to the admissibility of the interviews. We do not express a concluded view about those matters. If there is to be a retrial, as to which we have not heard argument, it will be a matter for consideration as to whether those interviews should be admitted. We merely observe, without reaching any conclusion about it, that all three members of this court have been concerned about the way in which the interviews were deployed at this trial. It seems that, to some extent at least, there was cross-examination on them with a view to discrediting the appellant. That was not the purpose for which they were admitted. We also have concern that the admission of the interviews and the details surrounding the offence of the 1994 conviction -- and we put it no higher than this -- may have distorted the trial and distracted the jury from the real issues in the case. It would not be appropriate to say more about that because, as we say, we have not heard argument about it. We merely express provisional concerns about those matters. For the reasons that we have stated the appeal against conviction is allowed.

LORD JUSTICE DYSON: I assume you are asking for a retrial?

[25]MR FARRER: That is what I was going to move to, my Lord.

LORD JUSTICE DYSON: Is there any objection to that?

[27]MR CLARK: If I just said delay. That is my only point. I have difficulty in addressing your Lordships bearing in mind the nature of the allegation. I have one other observation, and it may not be necessary for your Lordships, is where the retrial takes place. The trial was in Wolverhampton and upon conviction there was some local publicity. I do not seek to move it far away, and I know that is not necessarily a matter for your Lordships to consider. But I would be content if it just moved to Birmingham I think.[28]MR FARRER: My Lord, had there been an application to move the trial off circuit, I would have opposed it. But if my learned friend and for that matter the appellant would be more comfortable in Birmingham as opposed to Wolverhampton, I make no observations.

LORD JUSTICE DYSON: If that is the application and it is not opposed, Birmingham and Wolverhampton are not far apart.

[30]MR FARRER: Less than 10 miles.

LORD JUSTICE DYSON: Let us say Birmingham.

[32]We allow the appeal. We quash the convictions. We direct that a fresh indictment is to be preferred. The appellant is to be rearraigned on the fresh indictment within 2 months? This seems to be the standard form.[33]MR FARRER: My Lord, yes.

LORD JUSTICE DYSON: Within 2 months. We direct that the trial should take place at Birmingham.

[35]MR CLARK: Perhaps not Wolverhampton would be sufficient. It may be when it comes to Birmingham, they may send it to Stafford or another court.

LORD JUSTICE DYSON: Mr Farrer wants to make sure it does not go off circuit.

[37]MR FARRER: Stafford is on circuit.

LORD JUSTICE DYSON: A Crown Court centre on the Midlands. What do you want me to say?

[39]MR FARRER: The only observation I would make is that travel links between Wolverhampton and Birmingham are good. The witnesses may well have to travel from the Wolverhampton area to wherever this trial moves to. Stafford is more a remote market town.

LORD JUSTICE DYSON: Birmingham is a big centre with lots of courts, so we will say Birmingham.

[41]MR FARRER: It is.

LORD JUSTICE DYSON: You are not asking for bail?

[43]MR CLARK: My Lord, no.

LORD JUSTICE DYSON: He will be held in custody. We order representations orders for the retrial. Is there anything more?

[45]MR FARRER: My Lord, no, thank you.

LORD JUSTICE DYSON: Could I make this point. The estimate for this appeal I think was 40 minutes. If we had heard everything, there is no way that we could have completed this appeal in 40 minutes, including judgment. My understanding is that the court listing, in its wisdom, produces an estimate and it is notified to counsel and, if they disagree -- this is how the system is meant to work -- then they have to put forward their different estimate. You looked puzzled, Mr Farrer.

[47]MR FARRER: It is only that I have a recollection of having done just that in this case. I am looking for my note, if I have it to hand, which I am afraid I do not. My recollection is that I indicated that it was likely to be an hour-and-a-half. If I am wrong in that recollection, I apologise to the court unreservedly.

LORD JUSTICE DYSON: So long as it is known by the Bar that the court's estimates do have to be scrutinised, because I fear that very often the Bar just -- may be because they are instructed too late or whatever -- they do not look at these things, then we get lumbered frankly with totally unrealistic estimates.

[49]MR FARRER: The Bar hears my Lord's comment. If it did not happen in this case as it should have done, I certainly apologise.

LORD JUSTICE DYSON: Thank you very much.

[51]MR FARRER: Can I clarify one matter? The prosecution will plainly, subject to this, have to make a decision afresh as to whether to seek to readmit this evidence on a retrial. My Lord said towards the start of my Lord's judgment that we found that the judge was wrong to admit the evidence. Then later my Lord gave judgment on the basis that in effect it might have to be re-argued. I simply want the matter to be clear, so as the judge who might have to hear that argument is not embarrassed by conflicting statements.

LORD JUSTICE DYSON: I will check the transcript, but I hope it is clear that the basis upon which we say he was wrong was because he did not address section 101(4).

[53]MR FARRER: Yes.

LORD JUSTICE DYSON: We are not saying that had he addressed 101(4), that it might not have been possible to reach this decision. I do not think we want, any of us, to give you great encouragement. Indeed, the fact that the full court comprising the members that it did, they did not actually specify what was the particular concern that they had. There is nothing to indicate that the particular concern they had was the one which has been successful in this case. They looked at it maybe rather more broadly. I think none of us would wish to encourage you to the belief that if we had gone on to deal with everything, that we would have necessarily, even if the 104 point had not been present, you would have been successful. Indeed I did say but rather en passant, that we thought you had overstated the significance of the similarities.

[55]MR FARRER: My Lord I certainly shall not leave with any encouragement.

LORD JUSTICE DYSON: I hope what I have said is clear as to the precise scope of our decision.

[57]MR FARRER: Thank you very much.

Cited in 1 later judgment