Bullen v R [2008] EWCA Crim 4

[2008] EWCA Crim 4

Case No 2006/0510/C1

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM MAIDSTONE CROWN COURT

HIS HONOUR JUDGE PATIENCE QC

200605810 C1

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 18/01/2008

Before

LORD JUSTICE RIX

MR JUSTICE NELSON

MR JUSTICE TEARE

Between

LEE DAVID BULLENAppellant

REGINARespondent

(Transcript of the Handed Down Judgment of

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Miss M McGowan QC & Miss L Oakley (instructed by Derek Hayward & Co, Chatham, Kent) for Appellant

Mr J Higgs instructed by the Crown

Hearing Hearing date : 26 October 2007

Judgment

[1]This appeal concerns, as its primary ground, a novel and interesting point about the recent provisions governing the admissibility of bad character under the Criminal Justice Act 2003. Following a plea of guilty to manslaughter, are previous convictions of (relatively low level) violence admissible to prove the specific intent of the offence of murder? There is also a second ground of appeal, which concerns the manner in which the judge directed the jury concerning the appellant’s lies in interview.

[2]The appellant is Lee David Bullen, now 23, who on 17 October 2006 at the Crown Court at Maidstone before HH Judge Patience QC and a jury was convicted of the murder of Drew Shepherd. He was sentenced to life imprisonment with a minimum term of 15 years less 253 days spent in custody on remand. He appeals against conviction with the limited leave of the single judge. At the conclusion of the hearing, the appeal was allowed. These are our reasons for allowing the appeal.

[3]At the start of the trial, the appellant pleaded guilty to manslaughter, which was added to the indictment as count 2. The issue for the jury, therefore, was simply whether he had intended to kill or cause grievous bodily harm, and thus been guilty of murder. There was no other issue. His defence was lack of specific intent and he relied on his drunkenness. He had hit the deceased in the neck with a broken beer bottle which had penetrated the jugular vein. The appellant did not give evidence, but he had answered questions in interview.

[4]The death of Drew Shepherd occurred in a drunken fight early in the morning of 3 February 2006, after an afternoon and evening of socialising. The appellant and his friend John Towers, with their respective girlfriends, had started off in a pub, where they had met the deceased and his girlfriend. The deceased was a friend of John Towers but previously unknown to the appellant. The same group reassembled in Towers’ girlfriend’s home later that evening, with the addition of another of the deceased’s friends, Steve Lapping. The group consumed quantities of alcohol and other drugs. At about 1 am Towers offered the deceased, his girlfriend and Lapping a lift home. The appellant joined them. Lapping was dropped off first and did not witness what was to happen later. He was not aware of any tension in the car.

[5]The fight started after the group had got out of Towers’ car close to the deceased’s home. There was uncontradicted evidence from Towers that the deceased had struck the first blow; but there was also evidence from the deceased’s girlfriend that during the journey the appellant had become cocky and flirtatious and had asked for a kiss. However, the evening as a whole had been friendly, she said. There were loose beer bottles in the footwell of the car, and when the appellant got out of the car he was holding one.

[6]Everyone was more or less drunk. A fight began between the deceased and the appellant. Only Towers saw it start, with two blows from the deceased on the appellant: when the deceased came towards the appellant again, the latter struck him with the bottle in his hand and smashed it against his head. The two men were in the middle of the road, on the ground, hitting one another, the deceased on his knees, on top or leaning over the appellant. Towers hauled the deceased up first, and the appellant then got up. Towers saw blood on both of them. The fight resumed. It moved from the middle of the road to its side, and ended up by a wall on which the deceased sat, generally unresponsive, while the appellant punched him repeatedly as his girlfriend tried to protect him.

[7]The forensic evidence suggested that the fatal wound had been inflicted in the middle of the road, at the start of the fight, for that was where most of the broken glass and blood was to be found; but that inference was not common ground.

[8]Apart from Towers and the deceased’s girlfriend, the other witnesses of the fight were local residents looking out of their windows, some at least of whom had been woken up from their sleep. None of them saw the start of the fight. No one described the fatal blow.

[9]There was evidence of things said by the appellant at various stages of the fight, such as “I’ve done a number on you”, or “You’re lucky. I could” (or “should”) “have stamped on your head”, or “That’s what you get when you…”, or “I could have kicked his head in”. The word “stab” was also heard.

[10]Towers took the appellant away by car, back to their girlfriends’ home. He had not realised how badly injured the deceased had been when they left the scene.

[11]The pathologist certified the cause of death as the most serious of three stab wounds at the neck, the fatal one being 5 cms deep, penetrating the jugular vein. The base of the beer bottle made a precise mechanical fit in the area of the neck wounds, consistent with a jabbing or stabbing with a broken bottle. The pattern of injuries could not have been caused if the bottle had shattered as it went in, or by an unbroken bottle. At least moderate force would have been required. The angle of entry was horizontal at 90 degrees to the neck. Other injuries were consistent with falling over bits of broken glass.

[12]There was also evidence about the intoxication of both the deceased and the appellant. The deceased had an alcohol level of 305 mgs per 100 ml of blood, a level associated with extreme drunkenness in an ordinary social drinker. The back calculation performed on the appellant’s blood alcohol content after his arrest demonstrated that at the time of the fight his level would have been 235 mgs per 100 ml. Any figure above 200 would be associated with a significant degree of drunkenness in the normal drinker.

[13]The appellant was found asleep at 0530 that morning and arrested. At interview, the appellant initially denied having a bottle. At a subsequent interview, he accepted having a bottle and using it, saying that he swung it round and hit the side of the deceased’s head, in the area of the ear, when it smashed to pieces, leaving nothing in his hands. The prosecution said that these amounted to two lies: the first, that he never had a bottle at all, and the second, that he was never left with a broken bottle in his hand.

The ruling on the admission of bad character

[14]At a time when the appellant had not yet accepted manslaughter responsibility for the death of the deceased, the Crown gave notice of intention to adduce bad character evidence pursuant to section 101(1)(d) of the 2003 Act. The notice was served in response to the anticipation that the appellant was claiming that he acted in self-defence. The notice set out the details of 8 previous convictions. One prosecution had in fact failed: ultimately only 7 previous convictions were admitted. The notice asserted that these previous convictions were relevant because they showed “that the defendant has a propensity to be violent” and “to determine whether or not the defendant was acting in lawful self-defence.” In three of the previous convictions, the appellant had originally claimed self-defence; in one of the previous 7, a glass had been used and this was also relevant to “whether the defendant was acting in lawful self defence”.

[15]The offences for which the appellant had been convicted had occurred between 22 June 2000 and 13 November 2005. He had pleaded guilty on six of the seven occasions. The judge was to sum up these convictions to the jury at length, over the space of two and a half pages of the transcript. There were seven convictions, but one of them involved four offences, so there were in all ten offences. The four earlier appearances were in a youth court, and the three later appearances were in a magistrates’ court. The guilty pleas were to: an offence of assault occasioning actual bodily harm (a punch to a shop-keeper); an offence of assaulting a police officer in the execution of his duty (kicking and lashing out at police officers and a nurse while in police custody); an offence of using threatening words or behaviour with intent to cause fear of violence (punching a woman at a railway station and threatening to cut a man who intervened on her behalf); an offence of common assault (throwing a piece of wood which hit its target, in the course of a neighbour dispute); another offence of common assault (punching a woman in the face after he had been ejected for drunkenness from a pub and he began kicking the front door and she said she was going to call the police); and a third offence of common assault (punching his 18 year old brother in an argument). The last three offences occurred in 2005, the first three in 2000/2001: the appellant was then aged 15 to 21. He was 22 at the time of his trial for murder.

[16]The four offences to which he pleaded not guilty arose out of a single incident in June 2002: the appellant was swearing in a public place, a lady asked him to stop, he grabbed her by the throat and punched her, her 16 year-old son intervened and was also punched, her husband intervened and was struck over the head with the glass in his hand, which broke. He was convicted of offences of actual bodily harm, two common assaults and affray.

[17]The Crown persevered at trial in its application to admit evidence of these previous convictions, even though there was no longer any issue of self-defence, for the appellant had accepted that he was guilty of manslaughter. The Crown continued to submit that these offences demonstrated “a propensity on the part of the appellant to commit acts of violence which therefore made it more likely than might otherwise have been the case that the defendant was guilty of murder”. The defence submitted that none of these convictions were for offences of specific intent and showed no more than a tendency to behave violently. The judge ruled in favour of the Crown’s application. The judge addressed himself thus to the three questions posed by the Vice-President, Lord Justice Rose, in R v. Hanson

[2005] 2 Cr App R 21

at para 7:

“One: does the history of convictions establish a propensity to commit offences of the kind charged? In my judgment they did; they were offences of violence, involving, in some cases, the use, or threat of use of weapons, committed sometimes in drink, and all, save in one instance to which I have referred, deliberate acts. Secondly: did the propensity make it more likely that the defendant committed the offence of murder? In my judgment, it was open to the jury to conclude that they did, after receiving a proper direction, and considering the matter in the appropriate context, and of course, against the background of the whole of the evidence in this case. Thirdly: is it right to rely on these convictions and will the proceedings be unfair if they are admitted? In my judgment, both questions fell to be answered in the negative; these matters were not so prejudicial or scandalous as to cloud the issue before the jury, or to lead them to an adverse verdict, without a proper consideration of the whole of the evidence.”

[18]It is not clear from the judge’s ruling exactly how he considered that the previous convictions threw relevant light on the issue of specific intent before the jury at trial. However, he acknowledged the need for the jury to receive a proper direction which would assist them to see the evidence of bad character in the appropriate context. It is important, therefore, to see how he did direct the jury with regard to that evidence and the issue of specific intent which was before them.

[19]There is no doubt that the judge directed the jury about the issue of intent impeccably. Early in his summing-up he identified it as “the live issue…around his state of mind; what he intended, when he struck Drew Shepherd in the neck with that broken bottle” (at transcript 1, page 11C); and late in his summing-up, after emphasising that the infliction of the fatal blow with the broken bottle was admitted, he spoke of the issue again, saying “you have got to decide…why he did it, what was in his mind” (transcript 2, pages 46H/47A). The judge began by telling the jury that an intent can be maintained for a long time, or formed suddenly, as in bad temper. He then proceeded to assist them as to how they might form a judgment about intent, viz by looking at what the defendant was “saying and doing before, at the time of, and indeed after the act that lead to Drew Shepherd’s death”. Thus, questions which might occur to the jury to ask themselves, if they found it helpful, might be: What weapon was used? Where the deceased was struck? What the appellant’s purpose was in doing as he did? Whether the appellant had proceeded to attack the deceased further when he was sitting on the wall, and, if so, why? What was he heard to say? Finally, he directed the jury in standard terms about the significance of drunkenness to the question of intent.

[20]Nowhere in this direction, which covered four pages of the transcript, did the judge mention the appellant’s previous convictions as throwing any possible light on the issue of intent. But a little later in his summing-up, albeit separated from his directions on intent by further directions dealing with the drunkenness or sleepiness of various witnesses and with the significance of the evidence of the forensic experts, the judge turned to “Another matter of law, entirely separate, but very important”(emphasis added), namely the matter of previous convictions. We have already set out above the essence of that evidence of bad character. It is necessary, however, to set out in full the rest of the judge’s directions on this subject matter, emphasising certain further parts of them. He said – “Another matter of law, entirely separate, but very important: you may have wondered why it was that you heard evidence of previous convictions recorded against the defendant: in other words, that he has what the lawyers call a bad character, in the sense that he has criminal convictions recorded against him. Members of the jury, I will remind you of what those facts were, so that you have them in mind, if you were not able to follow them, and then give you directions as to how you should approach that evidence because it is very important that you understand why you heard that evidence, and what use you should make of them… Members of the jury, those matters were not put before you in that detail just, as it were, to aggravate the defendant’s situation, or make it worse, or still less to prejudice you. That is not the purpose of your hearing that material. It is important, as I have said, that you understand why you have heard this evidence, and how you can use it. It is also highly important that you keep in mind that you must not convict Lee Bullen of murder only because he has this bad character. The evidence of these offences may help you to resolve an issue that has arisen between the Crown on the one hand, and the defence on the other; namely, whether this defendant has a propensity that is to say a tendency, to commit violent offences of the kind with which he is now charged because, of course, murder is a violent offence, like the offences you have heard about in this history. If you think it right, you may take the previous convictions into account in deciding whether or not Lee Bullen committed the offence of murder. The Crown relies upon them because the Crown argue that the convictions show that Lee Bullen has a tendency to commit acts of violence, sometimes in drink, sometimes involving either the use of a weapon, or the threat to use a weapon. You have to decide whether these convictions do demonstrate such a tendency – that is for you to decide – and if so, whether or not that tendency makes it more likely that he committed the offence of murder which you are trying. You have to decide, in other words, to what extent, if at all, these convictions help you when considering whether or not he is guilty of murder, and considering at the same time the whole of the evidence put before you in reaching that decision. You must not, I repeat, convict simply because of the convictions, nor indeed mainly because of them. The propensity, or tendency, if you find that there is such, amounts to some additional evidence pointing to guilt, but bear in mind, even if you find that Lee Bullen does have such a tendency, it does not necessarily prove that he would commit further offences, or that he has committed this offence which you are trying…”

[21]After the jury retired to consider their verdict, they sent

the judge a note, which raised three questions:

“(1) Can you give us a copy of the legal definition of murder and manslaughter? (2) Can you clarify intention, serious harm…(3) Has he admitted self-defence, or said that it wasn’t self-defence?”

The judge discussed this note with counsel and overnight prepared a document for the jury, which was handed to the jury, and which he also read into the transcript. He there emphasised that, having pleaded to manslaughter, the appellant had admitted that he had not been acting in lawful self-defence, and that the issue of self-defence therefore did not arise. As for intention, the judge repeated the essence of the full direction that he had given towards the beginning of his summing-up. As before, that direction said nothing whatsoever about how the evidence of bad character could assist the jury, or be taken into account by them, in coming to their view on that single, critical issue.

[22]We observe that in his direction on the evidence of bad character, the judge had told the jury that it was a matter “entirely separate”; that it was important for them to understand why they had heard that evidence; that the reason was so that they could consider the Crown’s submission that it was evidence of a propensity to violence; and that, if they accepted that submission, such a propensity was additional evidence which pointed to guilt of murder. The judge did not explain how an accepted propensity to violence, of the kind indicated by the previous convictions, assisted the jury on the question of murder, which in the circumstances was entirely a question of specific intent. Nothing the judge said on the two occasions when the judge dealt with the question of intent tied it expressly in any way into the evidence of bad character; and vice versa.

The Criminal Justice Act 2003

[23]The relevant provisions of the 2003 Act are as follows: “101. –(1) In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if, - … (d) it is relevant to an important matter in issue between the defendant and the prosecution… (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. 103. (1) For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include – (a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence…

(2) Where subsection (1)(a) applies, a defendant’s propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of - (a) an offence of the same description as the one with which he is charged, or (b) an offence of the same category as the one of which he is charged.

(3) Subsection (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case.

(4) For the purposes of subsection (2) – (a) two offences are of the same description as each other if the statement of the offence in a written charge or indictment would, in each case, be in the same terms; (b) two offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of State.” …

The submissions on appeal

[24]On behalf of the appellant, Miss McGowan QC, who had also defended him at trial, submitted that the issue at trial was that of specific intent; that, given the plea to manslaughter, the appellant’s propensity to violence was not in issue, and certainly not an important matter in issue; the whole actus reus had been proved by the guilty plea; as for the required mens rea of specific intent, all previous convictions had involved offences of only basic intent, and could throw no light on the issue at trial. As for the judge’s summing up, he never explained, throughout his lengthy direction on bad character, how that evidence went to the issue before the jury. Nor, in dealing with the appellant’s intention, did he see any need to refer to the appellant’s bad character. It was never suggested that the basis of the admission of bad character was to show that the appellant would have appreciated from his past conduct that violence was capable of causing really serious physical harm, thus justifying the inference that he must have intended such harm; and in any event none of the previous offences had caused such harm. Since the previous convictions were irrelevant, they could only be unfairly prejudicial. In terms of the statute: the propensity to violence was not an important matter in issue, or a matter in issue at all (section 101(1)(d) and section 103(1)(a)); the appellant’s having such a propensity made it no more likely that he was guilty of murder (the proviso to section 103(1)(a)); it would in any event be unjust to apply the statute’s definition of “offences of the kind with which he is charged” (section 103(3)). In any event, such evidence had such an adverse effect on the fairness of the proceedings that the court ought not to admit it (section 101(3) and Police and Criminal Evidence Act, 1984, section 78(1)).

[25]On behalf of the Crown, Mr Jonathan Higgs, who had also prosecuted at trial, submitted that the evidence was properly admitted and properly explained to the jury. The bad character was not so much relevant to the “legal ingredient” of specific intent as to various factual sub-issues, such as, Who initiated the violence? And, Why was the appellant armed? Although the evidence was that the deceased had started the fighting, there was also evidence that the appellant had provoked trouble by flirting with the deceased’s girlfriend in the car. Indeed, he had no need to have gone along for the ride at all, nor to get out of the car when the deceased was dropped off. As a violent man who had used weapons before, the jury were entitled to consider whether he had deliberately set the incident up. Next, Did the appellant realise the bottle was broken and continue to use it? Did he continue to attack once the deceased had ceased to defend himself, and why? Mr Higgs suggested that the bottle broke initially, even before the area in the middle of the road where most of the blood was found. He also suggested that the fatal blow may only have been sustained at the very end, when the deceased was sitting on the wall, not defending himself. Such sub-issues would inform the jury’s consideration of the outstanding legal issue of specific intent. None of those factual issues had been addressed by the appellant’s guilty plea to the lesser offence.

[26]Moreover, the judge had correctly applied the three questions of Lord Justice Rose from Hanson in his ruling, and directed the jury in standard terms, leaving it to them to say whether the previous convictions did establish a propensity for violence, and warning them not to convict the appellant only or mainly because of his bad character. Although the judge, in dealing in his summing-up with the question of intention, posed different questions to the jury from those posed in these submissions, and did not refer at all in this context to the appellant’s previous convictions, it would have given those convictions undue prominence if he had weaved them into his direction on intent: as it was, it was more helpful to the appellant to deal with his previous convictions entirely separately. As for the statute, section 103(2) and (4), by the width of its language, showed a deliberate intention to allow convictions for previous violent offences of only basic intent to figure in a trial charging a more serious offence of specific intent. There was no unfairness in the admission of the disputed evidence. In sum, a record of sustained violence was relevant.

Discussion of ground 1: the admissibility of bad character

[27]We think that the judge here erred in principle in admitting this evidence of bad character, without examining sufficiently further what relevant light it could throw on the issue (or sub-issues) at trial. Matters started to go wrong when the notice of intention to adduce bad character evidence, which had been designed to deal with a case of self-defence to which a propensity for violence was clearly relevant, was not rethought or adapted in the light of the plea to manslaughter. The appellant thereby admitted that his use of violence was unlawful. He did not dispute carrying the bottle or using it when broken, or the cause of death. He did not dispute his intoxication, indeed he relied on it. He accepted that on that occasion at least he had been violent in drink. Only his intent was in issue. The judge correctly identified that issue as the critical, indeed the sole substantive issue, for the jury, and he properly directed them on that.

[28]In these circumstances, we do not think that a propensity for violence was relevant to or itself an important issue in the trial, if it could be said to be an issue, or relevant to an issue, in the trial at all. The Crown continued to say that it was an issue, and the judge accepted that submission in his ruling and directed the jury accordingly, for both in his ruling and in his summing-up he ascribed the reason why the evidence of the appellant’s bad character had been admitted was because it threw light on a propensity to violence, indeed on a “propensity to commit offences of the kind…charged”. But neither in his ruling nor in his summing-up did the judge explain any further what he meant by that, or how the bad character was relevant to an important issue between prosecution and defendant, or what issue he had in mind.

[29]It is true that these provisions of the 2003 Act are intended to replace the common law relating to bad character (see section 99(1)), and that the rules of the common law are not to be brought back by a restrictive interpretation of sections 101(1)(d) and 103: see Spencer, Evidence of Bad Character, 2006 at 62-66. Thus, there is no need for “striking similarity” as in DPP v. P

[1991] 2 AC 447

: see Hanson at para 10. It may also remain true that a defendant who claims he did not commit an offence (for instance of violence) at all but who admits his propensity to violence, may not succeed thereby in keeping out his previous convictions for violence, which may remain relevant to the question of his guilt, possibly because of the degree or nature of his propensity (see Spenser at para 4.25 at 63). Above all, the statutory language is no doubt intended to underline the significance of the complete change from the basic position of the common law, which was that, save for certain, limited, defined exceptions, previous bad character was not prima facie relevant at all to a defendant’s guilt. Nevertheless, for all the change in the law, the test is still relevance: see section 101(1)(d) itself, and the introductory language of section 101 itself – “is admissible if, but only if…(d) it is relevant to an important matter in issue…”. The fact that section 103(1) seems also to have the effect of always potentially including the “question of” propensity among “the matters in issue” should not be overstated to the extent that sight is lost of the need for relevance: the bad character must still be relevant to an “important” issue; it will not be a matter in issue at all where the proviso to section 103(1)(a) operates (“except where his having such a propensity makes it no more likely that he is guilty of the offence”), and the safeguard of section 103(4), where it would be “unjust” for previous convictions of the same description or category to be admitted to be used to establish a propensity, itself emphasises the significance of relevance’s handmaiden, probative value. Thus it is contemplated that it could be unjust for section 103(2) to apply “by reason of the length of time since the conviction or for any other reason”. Section 101(3), reflecting the rationale of PACE’s section 78, also requires a balancing of probative value and undue prejudice to the defendant.

[30]No authority has been cited to us regarding the particular problem before this court.

(a) , as follows:

“Evidence is not, however, admissible on this basis if the existence of such a propensity makes it no more likely that the defendant is guilty. This might be the case where there is no dispute about the facts of the case and the question is whether those facts constitute the offence (for example, in a homicide case, whether the defendant’s actions caused death).”

We can see that causation generally lies wholly in the facts of a particular case, and does not depend on a propensity. However, the statutory language is general, as in principle it is bound to be.

[31]We have observed that in R v. Duggan, reported together with R v. Edwards

[2005] EWCA Crim 1813

[2006] 1 Cr App R 3

(31), evidence of a previous conviction for an offence of common assault was relied on amongst others for the purpose of proving an offence of wounding with intent. In that case, however, the defendant claimed he was entirely innocent of any wrongdoing at all, blaming the woman he had injured with a bottle for first bumping into him and then moving her glass to his face as though to attack him, as a result of which he merely brought his arm up in self-defence. This court thought that the previous conviction was highly relevant and capable of establishing “propensity to violence relevant to the crucial issue as to who was the aggressor”. In our judgment, that has no bearing upon the present appeal. It merely illustrates how the particular circumstances of a previous offence may show a propensity to violence as shedding light on a particular issue in a later trial.

[32]On the contrary, in R v. Leaver

[2006] EWCA 2988

(10 November 2006, noted in Archbold 2008 at para 13-65a) the terms in which a previous conviction, for the offence of indecent exposure with intent to insult a female, were left to the jury at a trial where the defendant was charged with rape and causing grievous bodily harm with intent (section 18) led to a successful appeal. That was a case where the previous conviction had been admitted by agreement. So far as the rape count was concerned, there would have been no difficulty if the judge had limited his directions to the jury to a formula agreed with counsel that the previous conviction was relevant to whether the defendant had a propensity to degrade and insult women for his own gratification. However, the judge had gone further than that in his remarks in suggesting that the jury had heard about the previous conviction also for other, in this court’s judgment, irrelevant reasons. In particular, the previous conviction had no relevance at all for the section 18 count, on which the defendant had admitted the assault and only put in issue his intent to cause grievous bodily harm.

[33]In the present case, matters in our judgment started to go wrong when the Crown failed to think out anew why they wanted the previous convictions to go in after the plea to manslaughter. That lack of focus is reflected in the judge’s ruling, for in his treatment of Lord Justice Rose’s three questions he failed to take properly into account the limited nature of the issue at trial and for that purpose the significant fact that the previous convictions had been for offences where neither a specific intent to cause grievous bodily harm nor any causing of grievous bodily harm had been charged or proved. Thus in answering the first question, “1. Does the history of conviction(s) establish a propensity to commit offences of the kind charged?”, the judge focussed only on the fact that the offences were offences of violence, sometimes in drink, and in some cases involving the use or threat of use of weapons. He added that save in one instance the violence was “deliberate”, but that, in our judgment, was an unsatisfactory and potentially misleading gloss, if it was intended as such, on the concept of specific intent. Even offences of basic intent must be done deliberately (Archbold 2008 at para 17-39a). Given that the issue was not whether the appellant had committed a violent unlawful act causing death, but whether he had the specific intent necessary to murder, the judge should here (or at least elsewhere) have been reminding himself, even while accepting that the appellant’s career had certainly showed a propensity for violence, that “a propensity to commit offences of the kind charged” was a deliberately broad concept, properly designed for the generality of cases, but to be handled with care when the sole issue was specific intent. As for “2. Does that propensity make it more likely that the defendant committed the offence charged?”, this was the judge’s only real opportunity to consider the question of relevance, since he nowhere asked himself the question whether the appellant having the propensity in question is, or is relevant to, an “important” matter in issue (cf Archbold 2008 at para 13-64). The judge answered that question merely by saying that it was open to the jury to conclude that it did, after receiving a proper direction. In our judgment, the judge should have concluded that the answer was No. At any rate, if it was to be Yes, the judge should have explained what light in particular the previous convictions were capable of throwing on the case with which he was concerned. As for “3. Is it unjust to rely on the conviction(s) of the same description or category; and, in any event, will the proceedings be unfair if they are admitted?”, the judge said No, on the ground that the previous convictions were not so prejudicial or scandalous as to cloud the issue before the jury. But, if one gets this far, and it is our view that one does not, it does in our judgment seem unjust or unfair to rely on a raft of previous convictions which are not in themselves suggested to throw any light on the issue of intent before the jury.

[34]In this connection, Mr Higgs submits that the previous convictions were relevant to a number of factual sub-issues, even if not to what he calls the “legal ingredient” of specific intent. However, we can find no sign in the proceedings that the previous convictions were presented or deployed in this light or for this purpose. We think that this is really an attempt after the event to find a function for the bad character evidence which they lacked at trial. If this had been the way in which they were deployed, we would have expected to find support for such an analysis in the judge’s ruling and summing-up.

[35]That summing-up again reflects the lack of focus at the time of the ruling. We have already observed that the judge’s impeccable directions as to the issue of intention were wholly separate from the evidence of bad character. That remained the case when, following the jury’s note, the judge returned to the question of intention. Moreover, in dealing with bad character and asking, for the jury’s assistance, “why” they had heard that evidence, the judge told them only that it – “may help you to resolve an issue that has arisen between the Crown on the one hand, and the defence on the other; namely whether this defendant has a propensity, that is to say a tendency, to commit violent offences of the kind with which he is now charged because, of course, murder is a violent offence, like the offences you have heard about in his history”. That is not, however, the way in which Mr Higgs seeks in this appeal to support the admission of the previous convictions. He does not submit that a general propensity to violence made it more likely that the appellant’s admitted unlawful assault was on this occasion committed with the specific intent required for murder, but that it supported the Crown’s case on particular aspects of their evidence relating to the appellant’s intention. Moreover, it is potentially dangerous for the jury to be told that in the instant case previous offences were “of the kind with which he is now charged”, even with the further explanation that murder is a violent offence like the offences they had heard about in his past: for that blurs over the critical difference for the purposes of the law and the issue at trial between offences of basic and of specific intent. The statutory language is of course broad in using the concept of “offences of the kind”, to allow the possibility of a wide gateway, potentially narrowed by other considerations. But we think that in this passage, subject to his very proper notes of caution, the judge essentially left the jury without any guidance as to how they were to regard or use the lengthy history of previous offending that they had heard about, even though they were positively told that if they found a propensity to violence it “amounts to some additional evidence pointing to guilt”.

[36]We would emphasise that the special difficulty in this case is the combination of the narrow issue of intention at trial with the appellant’s merely general history, poor as it was, of violence involving only offences of basic intent which had not resulted in grievous bodily harm. The Crown was unable to run a case that his previous history had illustrated the danger of violence as a cause of really serious injury. We are not saying that a more focussed approach might not have been able to identify an (important) issue to which the appellant’s bad character was relevant and probative. In particular, the incidents which formed the subject-matter of his convictions on the one occasion he had pleaded not guilty, which had involved the use of a glass, might possibly in some circumstances have been relevantly and fairly deployed. However, for the reasons we have given above, we conclude that on this occasion the judge erred.

[37]In these circumstances, Mr Higgs has explicitly accepted on behalf of the Crown that he does not seek to submit that the appeal should nevertheless be dismissed on the ground that the conviction is in any event safe.

Ground 2: the lies direction

[38]It follows that ground 2 could not be dispositive; and Miss McGowan said that she did not submit that it would suffice all by itself. We can therefore deal with it briefly.

[39]It will be recalled that two lies were in question: at interview the appellant had first denied having a bottle at all, and subsequently denied having a broken bottle in his hand.

[40]This ground arises out of the terms of the judge’s Lucas direction on lies. He said – “…why did he lie? That is an important matter for you to consider for this reason: the fact that a lie is told is not, itself, evidence of guilt. Experience teaches us all, does it not, in whatever may be our walks of life, that people will tell lies for very many different reasons. Let me take another one entirely, someone will lie to cover up for someone else, although the liar is not guilty of anything; he is just protecting someone else. Someone will lie because they are frightened, they say the first thing that comes into their head without thinking, or they panic, or they are actually confused. Members of the jury, if any some such innocent reason in that sense is, or may be the explanation for any lies you find that the defendant has told, then of course they will not help you. But if you come to the conclusion that the reason, the only reason, or a significant reason for the defendant telling a lie was to cover up what he had done, namely, deliberately to thrust a broken bottle into the neck of Drew Shepherd, intending at least to cause him really serious harm, then of course the lie would add, would it not, as a matter of common sense, very considerable weight to the case for the Crown? So remember always the two stage approach: am I sure a lie was told by the defendant, and if so, what was the reason? Why did he tell that lie? Is it, or may it be the case that the lie was told for an innocent reason in the sense that I have illustrated to you?”

[41]The difficulty with that direction, Miss McGowan submits, is that it fails to put before the jury the most realistic of possible explanations for the appellant’s lies, other than his own consciousness of guilt on the charge of murder, which was that he knew he was guilty of the assault causing the deceased’s death, albeit not of the charge of murder, and that he was therefore trying to distance himself from the death as a whole. Mr Higgs submits, on the other hand, that the lies were told when the appellant knew that the police were investigating not just a death, but a murder, and that, because the appellant gave no evidence himself, the jury had nothing from him as to why he had lied, other than to protect himself from his guilt to murder.

[42]In our judgment, Miss McGowan’s submission is cogent. Even though the appellant gave no evidence, the possibility inherent in the facts of the case was that the appellant would have wished to distance himself from the death as far as he could: for the very reason that he was, at the very least, guilty of manslaughter, as he came belatedly to accept. This may not have been an “innocent” reason like covering up for someone else, or speaking out of panic, fear or confusion, but it would be a matter for the jury to consider whether it was nevertheless an innocent reason so far as the charge of murder was concerned. We think that the judge should to this extent have assisted the jury with this example, while reminding the jury that they had not heard from the appellant on this question, especially as the jury may well not have appreciated that even a fear of acknowledging a lesser guilt may stand as an “innocent” reason for these purposes. This is in our judgment an example where a direction tailored to the specific circumstances of the particular case is more valuable than a formulaic repetition of a necessarily standard and general exemplar.

Conclusion

[43]It was for these reasons that at the end of the hearing of this appeal we ruled that the appeal be allowed, and ordered a retrial.