O, R. v [2009] EWCA Crim 2235

[2009] EWCA Crim 2235

Case No 2009/01222/C1

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Monday 5 October 2009

The Strand

London

WC2A 2LL

B e f o r e:

LORD JUSTICE RIX

MR JUSTICE McCOMBE

and

MR JUSTICE BURNETT

Between

R E G I N ACrown

- v -

Between

Computer Aided Transcription by

Wordwave International Ltd (a Merrill Communications Company)

165 Fleet Street, London EC4

Telephone No: 020 7404 1400; Fax No 020 7404 1424

(Official Shorthand Writers to the Court)

Mr J Anders appeared for Appellant

Mr S Attridge appeared for Crown

J U D G M E N T

[1]This appeal concerns the admission of a previous conviction for possession of a bladed article into a trial as evidence of bad character pursuant to the provisions of the Criminal Justice Act 2003.

[2]On 27 January 2009, following a four day trial in the Crown Court at Inner London, before Her Honour Judge Karu and a jury, the appellant was convicted of unlawful wounding contrary to section 20 of the Offences against the Person Act 1861 (count 2), and of wounding with intent to do grievous bodily harm contrary to section 18 of the same Act (count 4). On 21 April 2009 he was sentenced to a Detention and Training Order for 24 months on the section 18 offence and for 12 months concurrent on the section 20 offence. He was acquitted of wounding with intent to do grievous bodily harm on count 1, as an alternative to count 2, as well as on counts of robbery (count 3) and unlawful wounding (count 5), as an alternative to count 4. Those five counts represented the charges on the indictment relating to two separate incidents two days apart, in one of which the complainant Hakeem Finn was injured in his hand by a pair of scissors, and in the second of which the complainant Cedric Clark was wounded on his head by use of a Stanley knife. The circumstances in which those wounds were caused were disputed. In each case the complainant said that he was attacked by the appellant and the appellant said that, on the contrary, he was defending himself against an attack by the complainant.

[3]The appellant appeals against conviction by leave of the single judge.

[4]The facts were as follows. On 28 May 2008 an altercation took place between the appellant and the first complainant, Hakeem Finn, during which incident Hakeem sustained a wound to the palm of his hand (count 2). On 30 May 2008 there was an altercation involving the appellant and Cedric Clark during which Cedric received a wound to his head (count 4).

[5]The prosecution case was that the appellant had threatened Hakeem with a pair of scissors following a disagreement in which Hakeem had said that he did not want a mobile telephone that the appellant had offered him. The Crown alleged that the appellant had punched Hakeem and had picked up the scissors. When Hakeem had tried to grab the scissors to protect himself, he sustained a cut to his hand. Two days later the appellant was responsible for an unprovoked attack on Cedric Clark. In this incident the appellant used a Stanley knife, causing Cedric to sustain a head wound. The prosecution relied upon the evidence of both boys together with their identifications of the appellant, as well as the appellant's previous conviction for possession of a Stanley knife, his failure to mention facts in interview and lies.

[6]The defence case was self-defence in each case. The appellant had picked up the scissors which were present in Hakeem's room when Hakeem had attacked him, and Hakeem had injured himself when he had tried to grab the scissors from the appellant. In relation to Cedric Clark, Cedric had produced the Stanley knife and had sought to use it on him. The appellant had tried to disarm him and in the ensuing struggle Cedric was injured.

[7]The complainant Hakeem Finn said in his evidence that he was 17 at the time of the offence and living in a hostel. On the afternoon of 20 May 2008 he was in his room with a friend called Dex, although Dex left before the attack on him took place. He answered a knock at the door and was surprised to see the appellant standing there because he did not know the appellant well and they were not speaking at the time. The appellant barged in and sat on the bed. He said that he had found a phone in which Hakeem might be interested. Hakeem pointed out that he already had one. The appellant became angry and said that Hakeem had earlier asked him if he could get a phone. The appellant then picked up a pair of scissors from a windowsill. He moved towards Hakeem and stood in front of him with the scissors open, close to Hakeem's neck. The appellant said, "Why are you lying?" Hakeem became frightened and pushed the appellant away. The appellant punched Hakeem several times and the parties exchanged blows. The appellant pushed Hakeem back on the bed. Hakeem said that he saw the appellant's right hand with the scissors coming for his face, towards his neck, so he put up his right hand and caught the scissors in his hand.

[8]Hakeem went to the police station two days later. He was examined by a doctor and the wound was stitched. The medical evidence was that it was a complex wound consistent with the injury being received during a defensive action such as blocking a stabbing action, as alleged by Hakeem, or by an attempt to grab open scissors, as alleged by the appellant.

[9]The complainant Cedric Clark said that he was aged 16. On 30 May 2009 he was making his way to a bus stop after school when he felt a punch to his back. He saw a person on a bicycle whom he recognised but did not know as he had never spoken to him. This boy grabbed Cedric's clothing and tried to punch him several times, to which Cedric responded. Cedric then saw that the boy had a knife. He said:

"The next thing I saw was a knife. I think it came out of his jacket. I don't know where he got it from. When he punched me I saw it so I didn't see where it came from. It was a Stanley knife which had an orange blade."

The boy jumped off his bicycle and struck him in the head. He was taken to hospital, where his head wound was stitched.

[10]In cross-examination Cedric denied certain matters that were put to him, such as that he had offered to repair the bicycle and that he had taken a Stanley knife from a tool box and had threatened the appellant with it. He denied that Hakeem had been present and he denied having discussed the injuries that he and Hakeem had each sustained. In effect it was put to Cedric that he had colluded with Hakeem in their accounts of the incidents.

[11]On arrest the appellant said in response to a caution that he had been in his bed at the relevant times. He made no comment in his interview.

[12]At the close of the prosecution case the prosecution applied to adduce evidence of the appellant's previous conviction for possession of a bladed article, namely a Stanley knife, just a few months before. The application was made under section 101(d) and/or (g) of the Criminal Justice Act 2003. In respect of gateway (g) the prosecution submitted that attacks had been made upon the character of the two complainants in that it was suggested in cross-examination that it was they who had started the offending by attacking the appellant, and it was suggested that they had colluded together in their accounts. In respect of gateway (d) it was submitted that the previous conviction indicated a propensity to misuse bladed articles.

[13]Following argument the judge ruled that the previous conviction was admissible under gateway (g). She said that it may well also be admissible under gateway (d), but she made no decision in that respect. In dealing with gateway (g) she said that the previous conviction was relevant to the issue that was before the jury involving two separate incidents where the appellant said that he had armed himself with a bladed article which just happened to be there. This was because the case put in cross-examination was that he had picked up the scissors in Hakeem's room in order to defend himself against Hakeem and that he had responded to a knife drawn on him by Cedric. The judge concluded that it would be fair to admit this evidence because it was in the interests of justice for the jury to know that the appellant had this previous conviction. It was highly relevant for the jury to know that not long before he had been in possession of a Stanley knife in particular. The circumstances of the previous conviction were that the appellant had had possession of a Stanley knife in his school. He said that he was taking it home, having picked it up in an art class.

[14]The appellant's evidence was that he and Hakeem had had a row. Hakeem began the violence by punching him in the face. A scuffle ensued. They fell on the bed. The appellant saw the scissors and picked them up, not intending to use them but intending to protect himself. It was Hakeem who injured himself in trying to take the scissors from the appellant. The appellant left when Hakeem was injured, taking the scissors with him but leaving them at the bottom of the steps.

[15]In relation to the second incident, the appellant said that he was helping a friend, Daniel, to repair a bicycle when they came across Cedric and Hakeem. There came a point when Cedric demanded in increasingly threatening terms to have use of the bicycle. It was Cedric who took a Stanley knife from his tool box and used it to make a threat. Cedric pointed the knife towards the appellant's stomach and had hold of his shirt. The appellant managed to take hold of the knife, but they were still scuffling. The appellant cut Cedric's head accidentally when Cedric was trying to punch him. He then dropped the knife and walked off. He accepted that when on arrest he said that he had been in his bedroom, that had been a lie.

[16]The single ground of appeal is that the trial judge had been wrong to admit the previous conviction because so far as gateway (g) is concerned, the appellant's case was no more than an emphatic denial of the offence or statement of his defence. In any event, a single previous conviction could not demonstrate propensity to commit grievous bodily harm. The offences were wholly different. There was no logical probative value in the previous conviction, and indeed no probative force. It was accepted that in the first incident the appellant had picked up the scissors and in the second incident had brought a knife to the scene in the sense that he had it in his tool box.

[17]In his concise oral submissions today Mr Anders, on the appellant's behalf, has drawn back from the strongest criticisms of the judge's decision in relation to gateway (g) about which he has said very little. He accepted that an attack had been made on the characters of the two complainants. However, he did not concede admissibility. He submitted that, even if admissible under gateway (g), nevertheless as a matter of fairness the evidence should have been excluded by reference to section 103(3) of the 2003 Act. Mr Anders' main submissions related to the concept of propensity, where he submitted repeatedly that the single previous conviction for possession of the Stanley knife, even though close in time to the trial, was without any (or at any rate any sufficient) probative force to prevent unfair prejudice occurring by its admission.

[18]Mr Anders referred the court to the leading case of R v Hanson

[2005] EWCA Crim 824

[2005] 2 Cr App R(S) 21

, and in particular to paragraphs 4, 7 and 9 of the judgment of the Vice-President (Rose LJ). He submitted that the answer to the three questions raised in paragraph 7, namely:

"(1) Does the history of conviction establish a propensity to commit offences of the kind charged? (2) Does that propensity make it more likely that the defendant committed the offence charged? (3) Is it unjust to rely on the conviction of the same description or category; ....?" were respectively, "

No", "No" and "Yes". In paragraph 9 of the judgment in Hanson there is a discussion concerning the occasions on which a single previous conviction may or may not show propensity.

[19]In our judgment, most of these submissions are beside the point. Mr Anders was right to concede orally that there had been an attack upon the characters of the two complainants. This was undoubtedly a strong attack upon their characters because it consisted not only of the allegation that each of the complainants had started the violence, but that they had colluded in telling the lies that they had told in court, and that in the case of Cedric Clark it was he who had drawn the knife upon the appellant. Therefore, unless it would have been unfair to admit the previous conviction, and thus to exclude otherwise admissible evidence, no complaint can be made about the previous conviction being put before the jury.

[20]It seems to us that the previous conviction was plainly admissible. The common law, even before the 2003 Act, had permitted previous convictions to be adduced before the jury when there had been an attack upon a witness' character, but it was accepted that, despite the admissibility under this doctrine of a defendant's previous convictions, it may be unfair to permit the admission of previous convictions in the particular circumstances of a trial.

[21]In this case the judge admitted the previous conviction on the basis of gateway (g), not on the basis of gateway (d). It seems to us that in the circumstances of this case it cannot be said that the judge was wrong not to exclude the evidence of the previous conviction, admissible as it was. The jury were entitled to know, in a case where there was a straight conflict of evidence in the two cases as to who had started the violence, whether the appellant or a complainant was more likely to reach for a bladed article for the purposes of attack rather than defence, and to know that the appellant had only a few months previously been carrying a Stanley knife at school. Therefore in our judgment the judge cannot be criticised for admitting the previous conviction under gateway (g). In her directions to the jury she explained why it was that the previous conviction had been admitted, under the usual caveats. She explained that in a case where the complainants were accused of lying, it was right that the jury should hear about the character of the person who had made those allegations. The judge then went on to deal with the question of propensity. She had not permitted the previous conviction to be adduced on the ground of propensity, but she reminded the jury that the prosecution argued that the evidence was relevant also because it established a propensity to carry bladed articles and in particular a Stanley knife. She said that it was a matter for the jury as to whether they thought it did establish such a propensity. We consider that these were fair and accurate directions.

[22]Finally, we would observe that propensity is one example of gateway (d). Although it is the example that section 103(1)(a) illustrates and underlines, gateway (d) is more generally concerned with relevance to an important matter in issue between a defendant and the prosecution. The question of who started the violence (in the case of the Stanley knife) and who picked up the weapon were important matters in issue between the appellant and the prosecution. The previous conviction was in the circumstances of this case relevant for those purposes too. However, the essence of the matter, as we have sought to explain, is that the judge was entitled to say that this was a case within gateway (g). She was also entitled to say that this was not a case where it would be unfair to admit the character of the appellant under that gateway in the light of the allegations that the appellant was making in respect of each of the complainants.

[23]For these reasons this appeal is dismissed. ____________________________________________