Lafayette, R. v [2008] EWCA Crim 3238

[2008] EWCA Crim 3238Case No 200800931 C3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 18 December 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE HOOPER
MR JUSTICE FORBES
MR JUSTICE PITCHFORD
Between
R E G I N ACrownv
Between
ANTHONY LASCELLES LAFAYETTE
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.R.B Whitehouse QC appeared for AppellantMr P.E Kyte QC appeared for Crown
J U D G M E N T

LORD JUSTICE HOOPER:

On

[1]31 January 2008 at the Central Criminal Court (the Common Serjeant of London) the appellant was convicted of murder and sentenced to life imprisonment with a minimum term of 14 years. It was ordered that the 374 spent remanded in custody should count towards sentence.[2]He appeals against conviction by leave of the full Court, which also referred his application for leave to appeal against sentence. At the conclusion of the hearing we announced that the appeal against conviction was dismissed and that we reserved our decision on the application for permission to appeal sentence. We now give our reasons. Summary of the facts[3]On the morning of Saturday 20 January 2007, shortly after 6.30am, the deceased, Michael Edwards aged 29, was fatally stabbed with a kitchen knife.[4]The facts leading up to the deceased's death were as follows: a) Michael Edwards and his partner, Shaumaine Richards, both crack-cocaine addicts, had spent the later part of the day on Friday 19 January 2007 obtaining funds to buy drugs. They used a variety of methods including two robberies, during which Michael Edwards had a screwdriver. The other robbery was of a female drugs dealer. b) After raising some money the deceased along with Louise Hutt, another crack-cocaine addict, and Azroy Dawes, an alleged 'good friend' of the deceased, arranged to go to an address in Tulse Hill to buy some drugs. The flat was that of Samantha Daley, the appellant's partner. The deceased was observed at this stage to appear 'desperate' for drugs, by his companion Louise Hutt. c) The deceased made a telephone call apparently to the appellant, which went straight to his voicemail, at 6.30am on the Saturday. d) The deceased, Azroy Dawes, and Louise Hutt arrived at the door of the flat at 20 Poullett House. The deceased began shouting loudly saying that he wanted drugs. The appellant and his partner, Sam Daley, annoyed at being awoken, came to the door. Sam Daley told Louise Hutt to move away. She did so and waited at the end of the corridor, at the top of the stairs, and away from the doorway into the flat. The struggle between the appellant and the deceased[5]A struggle ensued between the appellant and the deceased and Azroy Dawes, on the prosecution's case, was heard to say, 'There was no need to do that'. A knife was produced, which was the weapon that killed the deceased. In determining the guilt of the appellant at trial, the question which the jury had to resolve was, in effect: 'Who produced the knife?'.[6]In returning a guilty verdict at trial, the jury necessarily decided that it was the appellant who had taken the knife from the flat, contrary to his claim that it was the deceased who produced the knife and that in 'self defence' the appellant had grabbed the deceased's hands and accidentally caused the knife to pierce Mr. Edward's body. The events after the altercation in the doorway to 20 Poullett House[7]Azroy Dawes fled the scene, as did Louise Hutt, who saw the deceased leave the flat with a gash in his neck. The deceased managed to walk 600 metres before he collapsed in the street and died.[8]The appellant and his partner, Sam Daley, left the flat in Poullett House. On their way to the taxi rank, the appellant was seen on CCTV at 6.47am (within minutes of the killing), bending over a drain in the street, where the knife was later found. It was his case that he found the knife on leaving the flat.[9]The appellant and Sam Daley then went and spent two days in a Clapham hotel, having given a false name and address.[10]The appellant turned himself in to the Police at Sutton Police Station on Monday 22 January 2008. In interview he claimed that he had acted in self-defence and in defence of his girlfriend and her property, against an attack by the deceased. The appellant made no mention of the knife and the fact that he had hidden it down a drain, in interview with the police, and only admitted to having done so when evidence from the CCTV was adduced, some time later. In interview the appellant, given that he was the party who had been attacked, gave no reason as to why he and Samantha Daley fled. Only in evidence did the appellant say that he had fled because of a conviction for wounding with intent in 1985. He said that he thought that, because of the conviction, he would not be believed when he said that the death had been an accident during the course of a struggle.[11]On the prosecution's case threats and inducements were made on behalf of the appellant towards prosecution witnesses.[12]The appellant's defence statement read, in part, as follows. "The defendant and Mr. Edwards argued. Mr. Edwards shouted, 'I want some fucking money. I want fucking drugs'. The defendant told Edwards that he didn't have money or drugs and asked him why he was at his door at that time of the morning. The defendant believed that Mr. Edwards had come with others to rob him. Michael Edwards was still shouting. There was a struggle between Mr. Edwards and the defendant during which Mr. Edwards' right hand went behind his back. Edwards then raised his right hand in which he held a knife. Edwards started to bring the knife down towards the defendant. The defendant then shouted to Samantha Daley to get back inside as he was worried about her safety. The defendant used his left hand to grab Mr. Edwards' right wrist. He used his right hand to grab Edwards' left wrist. The defendant tried to stop Edwards from using the knife to stab him. The knife was close to Edwards' shoulder and at some point during the altercation, the knife pierced Edwards' body. Thereafter, Mr. Edwards, the two other black men and the white woman walked quickly down the corridor. The defendant ran inside the flat and locked the door. He told Samantha Daley to get dressed as he feared a reprisal attack. Shortly thereafter, Miss Daley and the defendant left 20 Poullett House. The defendant saw the knife on the floor by the railing by the first staircase, picked it up and took it with him. He and Samantha Daley walked past the first staircase and walked to the second staircase in order to exit the main building. En route to the nearest cab office, the defendant dropped the knife in a drain. Thereafter, the defendant and Samantha Daley took a taxi to the defendant's house at 113 Gilmore House, Clapham. The defendant handed himself in to the police at Sutton Police Station on Monday 22 January 2007. Matters of fact on which the Accused takes issue The defendant denied that he was armed with a knife during the altercation with Mr. Edwards. The defendant denied attacking Mr. Edwards with a knife. Mr. Edwards was armed with the knife, not the defendant. The defendant acted at all times in self-defence, in defence of Samantha Daley and in defence of the property, 20 Poullett House. The defence takes issue with the prosecution's account that Mr. Edwards was with one white woman and one black man outside Mr. Lafayette's address at the time of the altercation. The defence asserts that Mr. Edwards was accompanied by one white woman and two black men. The defendant denies that either he or Samantha Daley followed Mr. Edwards down the stairs and out of Poullett House immediately after the incident occurred. The defendant went back into his flat with Samantha Daley and locked the door, fearing a reprisal attack."[13]On 10 April 2007 the prosecution lodged a written application under Part 35 of the Criminal Procedure Rules for the admission in evidence of the appellant's convictions on 10 July 1985 for wounding with intent and carrying a firearm with intent to commit an indictable offence. The application was made under section 101(1)(d) Criminal Justice Act 2003. The prosecution wished to introduce the conviction as evidence of the defendant's propensity to commit offences of aggressive violence. On 26 April the defence filed an application under rule 35.6 seeking the exclusion of that evidence on the grounds that(1) the conviction did not constitute evidence of a relevant propensity and(2) it would be unjust to admit a conviction 22 years old. The judge did not rule on the application. It was agreed by counsel that it was very likely that the appellant's previous convictions would be introduced into evidence and no ruling was sought on the application before the appellant gave evidence.[14]During the course of the prosecution's case the appellant cross-examined about the bad character of the eye witness prosecution witnesses and of the deceased. They were addicts with a number of convictions. The thrust of the cross-examination was to the effect that the deceased and the others had come to the flat to rob the appellant and that their characters and their earlier behaviour was such that were likely to have done that. In the case of Asroy Dawes convictions for knifepoint robberies, for possession of offensive weapons and for rape were put to him.[15]In examination-in-chief the appellant admitted his previous convictions, including two which are of particular importance to this appeal. The evidence was thus admitted under section 101(1)(b) of the Criminal Justice Act, 2003. In 1985 he had received a sentence of 9 years for wounding with intent and possession of a sawn off shotgun. The appellant, then aged 21, had shot a man at close range in the groin/leg. He told the jury that, at the time, he was a member of a gang. In 2003, aged 40, he had been convicted of criminal damage, a comparatively minor matter involving damage to a window belonging to a flat occupied by Samantha Daley, who at the time was his partner albeit in a stormy relationship. He also admitted serious offences of supplying class A drugs, for which, at the age of 29, he received a sentence of 6 years and offences of dishonesty.[16]It was the appellant's case that by the time of the alleged murder he was a reformed character and had given up drug dealing. Why then, the prosecution asked, did the deceased and others come to the flat he was occupying?[17]In cross-examination the appellant was asked a few more questions about the 1985 conviction and he agreed that he had pleaded not guilty.[18]The prosecution then made an application to cross-examine the appellant about the background to the criminal damage. At the time of the incident Samantha Daley had made a statement to the police alleging that, in addition to breaking the window, he had through the letter box made a threat to slit her throat if she phoned the police. On behalf of the appellant it was argued that the evidence should be excluded.[19]The Common Serjeant gave the following ruling:
"We have reached the stage now in this trial where a defendant is being cross-examined and the prosecution now wish to cross-examine the defendant as to his background by adducing some evidence from his partner, Samantha. They have placed before the Court a statement dated 17th June 2003, concerning an incident at their home which has various references to threats and to a knife. The defence invite me to say that this should not be admitted. I am very grateful for the careful argument that has been placed before me. Basically, the defence say that the facts of this case are close to the case of Bovell & Dowds [2005] 2005 EWCA Crim 1091, paragraph 21."
Secondly, in any event it is only an allegation. Thirdly, looking at it overall, it is highly prejudicial: it being, in the words of Miss Higgins:
"Really more of a domestic incident involving a penknife rather than the use of a rather large kitchen knife and the dramatic results of that."
If those arguments fail then I should use my residual discretion not to allow it. The prosecution, on the other hand say that this evidence can go in through the bad character provisions through Section 101 either through (d) [relevant to an important matter in issue], (f) [evidence to correct a false impression], or (g) [attack on another person's character], or indeed all three of them. They concede that this matter has never been litigated but say that this does not mean that it cannot be admissible, indeed the interpretation of the Act certainly allows that to occur. The prosecution also say that there ought to be in reality a balance because throughout this trial, sadly, each major participant does have bad character and that those have already been explored in some considerable detail by the defence. I have had the opportunity now of considering the authorities and also the skeleton which has been provided to me. It does seem to me that this evidence is admissible. Indeed, I think it is admissible under all three of the gateways. It does mean that I should apply consideration of Section 101(3) to consider whether there is an adverse effect on the fairness of the trial. That is what I have attempted to do: which is really the same as Section 78, my residual discretion on fairness. It does seem to me having considered the overall background to this case that this is a matter that can be before the jury. There has been extensive cross-examination in relation to each of the major (I stress main players), but each of the major witnesses and personalities connected with this trial. In my judgment the jury are entitled to have as full a picture as possible given the way in which this trial has evolved, and to give this evidence whatever weight they think proper. It does not seem to me that there is particular prejudice such as I should withdraw this from the jury so, despite the attractive arguments placed before me by Miss Higgins, I allow the prosecution's application."[20]Mr Whitehead submitted to us that the judge was wrong. Whether the judge was right or wrong to rely on gateway (d), he was certainly entitled to rely on (g), given the full blooded attack on the character of the eye witnesses and the deceased. The evidence was also probably admissible under gateway (f), because the appellant had in his evidence trivialised the incident which led to the conviction by describing it as "domestic".[21]Mr Kyte QC cross examined the appellant about the incident and he denied making a threat to kill.[22]Samantha Daley was called to give evidence in support of the appellant's account of what led to the stabbing. Mr Kyte cross-examined her about the 2003 threats. She was reluctant to give evidence about it, saying that she could no longer remember and that the appellant had changed his ways since then. She did agree that he had had a very small folding pocket knife on him (the appellant had accepted that too but he described the penknife as a "novelty on a key ring".) We went through the notes of her evidence with Mr Whitehouse QC. He accepted only that the jury would have been entitled to conclude that she did adopt that part of her statement which referred to the threat to kill.[23]Mr Kyte made his speech. He mentioned the 1985 conviction. In persuading the court to grant leave, Mr Whitehouse said that Mr Kyte had made much of the 1985 conviction and invited the jury to conclude that the conviction made it more likely that the defendant had committed the murder. An analysis of the speech showed that this was not the case and Mr Whitehouse apologised to the court.[24]After Mr Kyte had made his speech, there was a short discussion about the contents of the summing-up. In so far as relevant to this appeal, the transcript reads: "THE COMMON SERJEANT: Might we return to the (inaudible) evidence. Is there no agreement between counsel? MR WHITEHOUSE: My Lord, we are, I promise you, working on it. What I know my learned junior has done in the last hour and a half is to put down upon paper our joint suggestions in relation to bad character. THE COMMON SERJEANT: I must say I am not overly concerned with bad character in the sense that in this case everything is in the jury - MR WHITEHOUSE: Yes, of course, but it is simply a question as to whether or not your Lordship feels obliged to say why everything is said and what it is relevant to. THE COMMON SERJEANT: The latest learning is that it is not essential to say why it is in, it is in by agreement, it is inevitable that in a case like this the jury will want to know something about the background. If counsel have judged it appropriate in everybody's case the jury should know as much about the background as they can. It is entirely for the jury what they will do with that information. MR WHITEHOUSE: Well, my Lord, we have read Professor Ormrod's remarks about Campbell and as far as I am concerned I certainly do not seek to disagree with what you have said. THE COMMON SERJEANT: I think things have moved on quite a lot in the last six months in regards to character. MR WHITEHOUSE: Yes. THE COMMON SERJEANT: Particularly in this case where nearly everybody has character in one sense or another. MR WHITEHOUSE: We were going to invite you to look at Murphy [[2006] EWCA Crim 3408] and give the jury a direction which takes account of the Lord Chief Justice's ruling in that case as to the extent to which previous convictions have any value as to establishing propensity after 22 years. THE COMMON SERJEANT: I think what I have just said, in fact, has come more or less directly from this verdict. Broadly speaking I will, of course, look at anything you wish to place before me and listen to anything you have to say. But that is broadly speaking what I shall be saying. I shall not be dwelling on character particularly. They have to consider everybody on their merits in the end. MR WHITEHOUSE: Yes." (Underlining added)[25]As to the words which we have underlined, "It is entirely for the jury what they will do with that information", we do not think that that is right, albeit that Mr Whitehouse agreed with it. In R v Edwards and others [2005] EWCA Crim 1813; [2006] 1 Cr App R 3 the then Vice president said:
"It should be explained why the jury has heard the [bad character] evidence and the ways in which it is relevant to and may help their decision."
[26]In Campbell [2007] EWCA Crim 1472; [2007] 2 Cr App R 28 Lord Phillips CJ, giving the judgment of the Court said:
"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. "
[27]We turn to the summing-up.

The judge said towards the start of his summing up:

"Each of the key witnesses inevitably has had their brushes with the law. You are of course entitled to have their backgrounds and lifestyles in mind when assessing the worth of what they say. Then each can be and probably has been the subject of reasonable criticism."
[28]He continued a paragraph later: "I now turn to the specific details of the defendant and his record of previous convictions. Just to say this: in the old days, juries generally were not told about a defendant's previous conviction. This was because of a sort of fear that such information might prejudice a jury against a defendant and they would give that information more weight than it deserved. Well now, in the last couple of years, such evidence is often admitted and a jury understandably wants to know whether what a defendant is alleged to have done is out of character or whether he has behaved in a similar way before. Of course a defendant's previous convictions are only background. They do not tell you whether or not he has committed this offence. What really matters is the evidence that you have heard in relation to this allegation. Please be careful not to be unfairly prejudiced against the defendant by what you have heard about his previous convictions." (Underlining added)[29]This passage comes from Campbell [2007] EWCA Crim 1472; [2007] 2 Cr App R 28. Lord Phillips CJ, giving the judgment of the Court, said that a more helpful direction than that given by the trial

judge would have been along the following lines:

"Members of the jury. In the old days juries were usually not told about a defendant's previous convictions. This was because of the fear that such information would prejudice the jury against the defendant and that they would give it more weight than it deserved. Today such evidence is often admitted because a jury understandably want to know whether what the defendant is alleged to have done is out of character, or whether he has behaved in a similar way before. Of course a defendant's previous convictions are only background. They do not tell you whether he has committed the offence with which he is charged in this case. What really matters is the evidence that you have heard in relation to that offence. So be careful not to be unfairly prejudiced against the defendant by what you have heard about his previous convictions."
[30]Campbell was a case in which the bad character evidence was admissible to show propensity. In the words of Lord Phillips:
"47. ... the appellant's previous convictions for violence to women of a similar nature to that spoken to by Miss Lee [the complainant] gave cogent support to her evidence."
[31]The Common Serjeant then told the jury to take the same approach to the deceased and to the prosecution witnesses:
"That same general approach should be taken with the record that you have heard about of Michael Edwards, of Asroy Dawes, of Louise and to some extent to Shaumaine as well."

The judge continued:

"The issue here is whether you have been made sure by the evidence that Mr Lafayette unlawfully stabbed Michael Edwards to death. He says that having seen Mr Edwards raising a knife he had no choice but to take action and wrestle with him leading to that fatal injury. When considering that account, you are entitled to consider what you have heard about him and about his previous record of offending which includes: the use of a weapon in 1985, and this altercation with Samantha in 2003, when a penknife was produced and threats were apparently made. In the end however, you must evaluate matters on what you have heard and you have seen and unless you have reliable evidence then you should disregard them."
[33]Mr Kyte submitted that the judge in these passages was giving what Mr Kyte described a propensity direction, albeit "watered down." Mr Whitehouse agreed that the judge was giving a propensity direction and submitted that such a direction was inappropriate.[34]We do have some doubts whether the judge was directing the jury that they were entitled to rely on the 1985 and 2003 incidents as evidence of propensity to commit offences of the kind with which he was charged, namely murder (see section 103(1)(a)). Mr Kyte had not relied on propensity in his speech and the judge had not given a ruling that the 1985 incident could be relied on for this purpose. In any such ruling on the 1985 incident the judge would have to have dealt with section 103(3) and the argument of Mr Whitehouse based on Murphy (a stale conviction case). As Lord Phillips said in Campbell:
"47. ... The extent of the significance to be attached to previous convictions is likely to depend upon a number of variables, including their number, their similarity to the offence charged and how recently they were incurred and the nature of his defence."
[35]We also have doubts whether the 2003 incident involving a domestic dispute, a shouted threat through a letter box and possession of a small knife could properly be relied upon as evidence of propensity to commit offences of the kind with which he was charged, namely murder. Section 103(1) requires that. A mere propensity to angry outbursts is not enough. The importance of applying section 103(1)(a) carefully is stressed in a number of cases referred to us by Mr Whitehouse: Dolan [2002] EWCA 1859; Tully and Wood [2006] EWCA Crim 2270; Osbourne [2007] EWCA Crim 481 and Urushadze [2008] EWCA Crim 2498.[36]Mr Whitehouse further submitted that in so far as the 2003 incident is concerned, the judge should have directed the jury that they could not rely on the evidence that the appellant had threatened Samantha Daley unless they were sure that she had adopted her witness statement in this respect (no application having been made by the prosecution to rely on sections 119-120 of the Act) and that they were sure that the threats had been made. We agree. The evidence of the circumstances allegedly surrounding the criminal damage in 2003 having been denied by the appellant, a direction was required, in this case, that the jury should not rely on those circumstances unless they were sure that the appellant had made the threat.[37]Section 98 provides that "References ... to evidence of a person's bad character are to evidence of, or a disposition towards misconduct on his part ..." Section 112(1) defines misconduct as meaning "the commission of an offence or other reprehensible behaviour". An allegation of "reprehensible behaviour" will normally be admissible (see section 109), but unless the jury are sure that the appellant engaged in the alleged reprehensible behaviour, they cannot rely on it for the purposes of assessing the defendant's credibility or his propensity to commit offences of the kind with which he is charged.[38]Mr Whitehouse argued (directing our attention to Osbourne [200] EWCA Crim 481) that shouting threats of this kind to one's partner did not constitute reprehensible behaviour. We do not agree. Threats of the kind alleged by the prosecution to have been made in this case could constitute reprehensible behaviour.[39]In our view the judge had to address the following issues in the summing up: ii) for what purpose the evidence, now that it had been admitted, could be used by the jury in its deliberations; iii) whether there was a danger that the jury might use the evidence for an inappropriate purpose and, if so, what warning should be given to them as to the limitations of the evidence.[40]The judge had to consider the purpose for which the numerous previous convictions and in particular the 1985 conviction and the 2003 allegation could be used by the jury. If the judge concluded that the 1985 conviction and the 2003 allegation could properly be used by the jury as evidence of propensity (and we are not sure that he could), then his directions needed to be fashioned to deal with the issue. It would be necessary to direct the jury that it was for them to judge whether the evidence of bad character and the propensity contended were proved by the prosecution to their satisfaction, and it was for them to assess whether and to what extent the alleged propensity, if proved, assisted them to conclude whether the defendant was guilty. He would add conventional warnings against over-reliance upon such evidence. Among the specific warnings the jury would have required was that they should take into account the age of the 1985 conviction, the age of the defendant at the time and the absence of any subsequent convictions for violence, before concluding that the defendant possessed, in 2007, a propensity towards serious violence of the kind charged.[41]If, on the other hand, the judge had concluded both that the evidence was not capable of establishing a relevant propensity and that in the absence of a warning the jury might stray towards a finding of propensity, they required an explicit direction that they must not regard the evidence of the 1985 and 2003 incidents as any evidence that the defendant acted as alleged in the indictment.[42]Whilst taking the view that the summing-up did not deal with the issues as it should have done, we must ask ourselves whether the conviction is safe. It will not be safe unless the jury would have inevitably come to the same conclusion had they been properly directed.[43]Mr Kyte sought to persuade us that the evidence was overwhelming and that the alleged misdirections did not affect the safety of the conviction. Mr Whitehouse submitted that the evidence of the alleged eye witnesses was deeply flawed.[44]Given that there had been an attack on the character of the deceased and the prosecution eye witnesses, gateway (g) was triggered. Before the 2003 Act, an attack on the character of prosecution witnesses could lead to the admission of bad character evidence.

(f) of the Criminal Evidence Act 1898 provided:

"A person charged and called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless- (i) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged; or (ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution; or (iii) he has given evidence against any other person charged in the same proceedings."
[45]Where "the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution", then, in the words of Lord Lane CJ in Powell [1985] 1 W.L.R. 1364, in a passage starting at 1369:
"In the ordinary and normal case the trial judge may feel that if the credit of the prosecutor or his witnesses has been attacked, it is only fair that the jury should have before them material on which they can form their judgment whether the accused person is any more worthy to be believed than those he has attacked. It is obviously unfair that the jury should be left in the dark about an accused person's character if the conduct of his defence has attacked the character of the prosecutor or the witnesses for the prosecution within the meaning of the section ..."
[46]The pre 2003 Act authorities on this topic were fully canvassed in McLeod [1994] 1 WLR 1500 (discussed recently in Lamaletie and Royce [2008] EWCA Crim 314). It was well established under the old law that previous convictions admitted under this part of the 1898 Act could not be used to show propensity, see eg Maxwell v. Director of Public Prosecutions [1935] A.C. 309, 321. In McLeod, the Court pointed out the difficulties of reconciling this proposition with the admission into evidence of previous convictions following an attack on prosecution witnesses:
"If an accused man who has attacked prosecution witnesses has many previous convictions for similar offences, it may be necessary that the jury should understand the character of the person making the allegations; at the same time it is difficult to pretend that such a history does not show a propensity to commit the instant offence. Take the case of a drugs dealer: a very common defence is that drugs were planted by the police and, any admission alleged to have been made, fabricated. If he had a number of previous convictions for supplying or possession with intent to supply drugs, the jury cannot judge the substance of the defence without knowing this, and perhaps also, if it be the case that the defence advanced on previous occasions was that the drugs were planted. Yet the more the convictions, the worse the character, the greater the propensity to commit the offence."
[47]The court in McLeod drew from the authorities a number of propositions, two of which are relevant to the issues on this appeal:
"1. The primary purpose of the cross-examination as to previous convictions and bad character of the accused is to show that he is not worthy of belief. It is not, and should not be, to show that he has a disposition to commit the type of offence with which he is charged: see Reg. v. Vickers [1972] Crim L.R. 101, Reg. v. Khan and Reg. v. Barsoum. But the mere fact that the offences are of a similar type to that charged or because of their number and type have the incidental effect of suggesting a tendency or disposition to commit the offence charged will not make them improper: see Reg. v. Powell [1985] 1 W.L.R. 1364; Reg. v. Owen, 83 Cr.App.R. 100 and Reg. v. Selvey [1970] A.C. 304. ... 7. In every case where the accused has been cross-examined as to his character and previous offences [under this part of the 1898 Act], the judge must in the summing up tell the jury that the purpose of the questioning goes only to credit and they should not consider that it shows a propensity to commit the offence they are considering."
[48]In Campbell the Court, dealing with the propensity provisions of the 2003 Act, said: "28. In considering the inference to be drawn from bad character the courts have in the past drawn a distinction between propensity to offend and credibility. This distinction is usually unrealistic. If the jury learn that a defendant has shown a propensity to commit criminal acts they may well at one and the same time conclude that it is more likely that he is guilty and that he is less likely to be telling the truth when he says that he is not.[49]Mr Kyte relies on this passage, but we stress that Campbell was a propensity case. In many cases at least some of the bad character evidence admitted under gateway (g) will also be admissible under gateway (d) and thus entitle the judge to give a propensity direction (see Highton [2005] EWCA Crim 1985). What is the position to-day if the evidence which is admissible under gateway (g) is not admissible under gateway (d) to show propensity? For example, what should the judge say if the evidence under gateway (g) showed only previous convictions for offences of dishonesty and/or drugs offences and/or offences of violence, from any of which the jury would not be entitled to conclude that they showed on the part of the defendant a propensity to commit the kind of offences with which he is charged? We think that the better course is for the direction to be so fashioned in a gateway (g) only case that the jury understand that the relevance of these kinds of previous convictions goes to credit and they should not consider that it shows a propensity to commit the offence they are considering, at least if there is a risk that they might do so. That is not to say that the words "credit" and "propensity" should be or need to be used.[50]In so far as previous offences of violence (or violent reprehensible conduct) are concerned, we accept that this suggested direction runs contrary to Meyer [2006] EWCA Crim 1126, discussed in Lamaletie and Royce, para. 16. We also accept that it is not easy to draw a distinction between credit and propensity when the offences/conduct admissible under gateway (g) have some similarities to the offence charged but do not show the propensity addressed by section 103(1). That difficulty is reflected in the pre-2003 Act cases to which we have referred and we are mindful that the LCJ said in Campbell:
"24. ... Decisions in this field before the relevant provisions of the 2003 Act came into force are unhelpful and should not be cited."
But it seems to us that the Act does require a distinction to be made between taking into account the defendant's previous convictions/conduct when deciding whether to believe his account of what happened and using those previous convictions as evidence of propensity. If the previous convictions admitted under gateway (d) are previous offences of violence and if they are not admissible under gateway (g) to show propensity, then it may be better to direct the jury that they may be taken into account when deciding whether to believe the defendant's account that he was, for example, the object of a violent attack and thus entitled to defend himself.[51]We return to this case.

The judge said, as we have seen:

"When considering that account, you are entitled to consider what you have heard about him and about his previous record of offending which includes: the use of a weapon in 1985, and this altercation with Samantha in 2003, when a penknife was produced and threats were apparently made. In the end however, you must evaluate matters on what you have heard and you have seen and unless you have reliable evidence then you should disregard them."
[52]He had earlier said:
"Of course a defendant's previous convictions are only background. They do not tell you whether or not he has committed this offence. What really matters is the evidence that you have heard in relation to this allegation. Please be careful not to be unfairly prejudiced against the defendant by what you have heard about his previous convictions."
[53]Notwithstanding the failure to tell the jury that they had to be sure before relying on the 2003 incident and notwithstanding the failure to deal with the issue of credit/propensity in the way we have outlined, there were sufficient safeguards in these passages in the summing up that we are satisfied, in this case, that the conviction is safe.

Sentence

[54]MR JUSTICE FORBES: We now turn to consider the application for leave to appeal against sentence. The applicant is aged 44. He has a number of previous convictions dating back to 1982 for offences relating to drugs, violence and dishonesty. His first and longest sentence of imprisonment was for a total period of nine years imposed on 10 July 1985 at the Central Criminal Court for offences of wounding with intent, carrying a firearm with intent, and assault with intent to resist arrest. The wounding involved shooting the victim with a shotgun in or very near the area of the groin.[55]On 14 April 1993 the applicant was imprisoned for six years for being concerned in the supply of Class A drugs. Since then, his convictions have been for relatively minor offences such as theft.[56]On 8 September 2003 and 1 March 2004 he was made subject to Drug Treatment and Testing Orders with conditions of residence. His most recent conviction on 12 March 2004 was for an offence of criminal damage for which he was conditionally discharged.[57]Mr Whitehouse submitted that the minimum term of 14 years specified by the judge was manifestly excessive in all the circumstances of the case. Mr Whitehouse accepted that the judge had selected the correct starting point of 15 years: see paragraph 6 of Schedule 21 to the Criminal Justice Act 2003. Mr Whitehouse pointed out that the judge had also acknowledged that none of the aggravating factors identified in paragraph 10 of Schedule 21 were present in this case. However, it was Mr Whitehouse's submission that the judge had failed to take into account sufficiently the two Schedule 21 mitigating factors that were present, ie(i) the fact that it had been the applicant's intention to cause serious bodily harm rather than to kill, and(ii) the lack of premeditation: see paragraph 11(a) and (b) of Schedule 21.[58]Mr Whitehouse also submitted that the judge had failed to have sufficient regard to another important mitigating factor, namely the appellant's successful completion of the Drug Treatment and Testing Orders to which he had been made subject in 2003/2004, as a result of which he had freed himself of his long-term habit of drug abuse.[59]In short, it was Mr Whitehouse's submission that, having regard to the nature and significance of these mitigating factors, the judge should have deducted more than just one year from the starting point of 15 years.[60]We have carefully considered Mr Whitehouse's submissions but are not persuaded by them. Although the judge did not set out in his sentencing remarks a detailed calculation to how he arrived at the specified minimum term, it is clear that he had all the relevant factors firmly in mind when passing sentence and that he carried out the appropriate balancing exercise by reference to all the relevant factors. It suffices to quote the following passages from his sentencing remarks:
"The fact is that this was a terrible crime ... You have a string of previous convictions including wounding with intent and carrying a firearm in 1985, for which you were given a total of 9 years ... and in 1993 you were given 3 years for supplying Class A drugs ... You were given Drug Testing and Treatment Orders in both 2003 and 2004. It is said that you put that residential treatment to good use and managed to conquer your addiction. You do have favourable reports from the institutions and projects for your work in 2006, which I have noted ... ... I agree with Mr Whitehouse that the starting point is one of 15 years ... I agree in this case that there are no aggravating features. There are mitigating features: there are two. Firstly, that there was no premeditation and secondly that the intention cannot be said to be put higher than to cause really serious harm. I balance out the various factors in this case and it is my view that the minimum term under the Act should therefore be one of 14 years ..."
[61]In our view, the starting point of 15 years should be increased to 16 years to take account of the applicant's previous convictions, in particular for the very serious offence of violence committed in 1985. Given the applicant's use of a long kitchen knife and the position and nature of the wound inflicted with it, we do not consider that much significance can be attached to the absence of an intention to kill, although we accept that there should be some limited recognition of that mitigating feature. When the other two mitigating circumstances are also taken into account, we are satisfied that the deduction of two years from the 16 years would be appropriate, resulting in a specified minimum term of 14 years.[62]Having regard to his sentencing remarks, we are confident that the judge arrived at the figure he did by a similar process of reasoning. There is no substance in this application, which is, for those reasons, refused accordingly.

Cited in 1 later judgment