Foster, R. v [2009] EWCA Crim 353

Case No 2008/03281/B1

[2009] EWCA Crim 353

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Tuesday 10 February 2009

The Strand

London

WC2A 2LL

B e f o r e:

LORD JUSTICE RICHARDS

MR JUSTICE WYN WILLIAMS

and

SIR PETER CRESSWELL

Between

R E G I N ACrown

- v -

Between

OWEN STANLEY FOSTER

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Mr D Bunting appeared for Appellant

Mr A Wadling appeared for Crown

J U D G M E N T

[1]Owen Foster appeals against his conviction on 15 May 2008 at Wood Green Crown Court, following a trial before His Honour Judge Ader and a jury, on counts of robbery (count 1) and handling stolen goods (count 2).

[2]The robbery took place in the early evening of 17 July 2007 on the driveway of the home of a Mrs M. When she drove into the driveway she was followed in by a man on foot. He grabbed her wrist and pulled off her watch. He then went for her bag, which she gave to him. A second man appeared and took her ring. After the incident the men went to an Audi car, the registration number of which was noted by Mrs M and another witness. It turned out that the car had been stolen in May and fitted with false number plates.

[3]Mrs M gave a description of the two men. In a subsequent identification procedure she identified the appellant as the first man.

[4]On 18 July 2007 (the day after the robbery), the stolen Audi was seen by the police. They approached the lone male driver, who drove off. The vehicle was pursued, but the police lost sight of it for a while. It was found parked and empty. About ten minutes later the appellant emerged from the area of a nearby disused building. He was sighted and arrested. At the time of his arrest he was identified by the three pursuing police officers as the driver of the Audi. One officer later identified him at a formal identification procedure, but the other two did not.

[5]The prosecution case at trial was that the appellant had taken possession of the stolen Audi, knowing it to be stolen, had used it on 17 July when committing the robbery, and had been the driver on 18 July when the car was pursued by the police. The defence case was that the appellant was not the robber and that Mrs M had made a mistake in identifying him. He also put forward an alibi in which he said that at the time of the robbery he was with a woman who lived close to where he was arrested. He denied ever having been in the Audi and said that the officers were mistaken in identifying him as the driver.

[6]The prosecution case included evidence from Mrs M, from a neighbour who saw the end of the robbery incident, and from the three police officers involved in the pursuit of the car and the arrest of the appellant the following day.

[7]The appellant himself gave evidence in support of his defence, although there was no other evidence to support his alibi.

[8]The single judge gave leave to appeal on one ground alone. Two grounds in respect of which leave was refused are renewed before us. The submissions on the appellant's behalf have been presented by Mr Bunting in the first place in writing, where they are set out very fully and clearly. In the circumstances it has been possible for Mr Bunting to focus his oral submissions with commendable succinctness on the key issues that arise out of the written submissions.

[9]The first issue to consider concerns bad character. The appellant had a total of 41 previous convictions, two of which the Crown sought to adduce in evidence under section 101 of the Criminal Justice Act 2003. One was an attempted robbery in April 1999. The known details of that were that the appellant, in the company of a woman, took a ride in a taxi and when the driver asked for his fare the appellant produced a knife and said, "No, give your money". When the cab driver refused, the appellant and the woman ran off. The appellant's whereabouts were established. He was arrested and a knife was found. He was convicted and sentenced to 30 months' imprisonment. The second offence was an actual robbery in March 2001 when a man walking outdoors was approached by the appellant and another man. They stopped him and asked for change. When he told them to go away, they took hold of him and the appellant punched him twice in the face. They then took his wallet and walked off. The appellant was arrested two days later when the victim saw him in the street and called the police. He was convicted and sentenced to three years' imprisonment for that offence.

[10]The judge acceded to the Crown's application to adduce evidence of those two previous convictions. It is contended on the appellant's behalf that the judge fell into error in allowing that evidence to be adduced. This is a ground in respect of which the single judge refused leave but which is renewed before us.

[11]The complaint relates to aspects of the judge's reasoning in support of his ruling. The judge said that the two previous robberies showed a course of conduct pointing towards a propensity to commit robbery and that the types of robbery committed on the previous occasions were sufficiently similar for the jury to be entitled to hear of them to determine whether the appellant had a propensity to commit robbery. The similarities alleged by the Crown and to which the judge referred were that each of the victims appeared to have been targeted individually, that two people were involved on each occasion, and that there were threats and the use of force on each occasion. It is submitted by Mr Bunting that the judge was wrong to find similarities between the offences and that there was, in truth, nothing of similarity between the previous convictions and the instant robbery. Insofar as violence or the threat of violence occurred, it was no more than is inherent in the offence of robbery.

[12]In addition, the judge referred twice to the appellant's other convictions. He did so on each occasion when considering the age of the two robbery convictions. He noted that they had to be considered in the context of the appellant's whole criminal record. Nonetheless, it is submitted that it is impermissible to use other offending that is not part of the application to establish propensity.

[13]Lastly, it is submitted that the judge fell into error by dealing with the age of the two previous convictions only when considering the discretion to exclude the evidence, rather than when considering the threshold question of relevance to propensity.

[14]We do not accept that the judge arguably fell into error in ruling as he did. On a fair reading of the reasons he gave for his ruling, he took into account both the nature and the age of the previous offences when considering their relevance to the issue of propensity and he took into account the other offending only as back-ground when considering the significance of the age of the previous robbery offences. The similarities between the earlier offences and the robbery with which the appellant was now charged were relatively limited, and the previous offences were indeed relatively old. However, we are wholly unpersuaded that it fell outside the judge's reasonable discretion to allow evidence of those previous convictions to be admitted. The renewed application on this ground is therefore refused.

[15]That brings us to the ground on which leave to appeal was granted, namely the direction that the judge gave to the jury in the course of his summing-up on the issue of bad character. His direction was in these terms:

"Well then, how do you deal with the fact that he has convictions because in one sense you may think, 'Well those are separate incidents and have got nothing to do with this case', on another thing you may think, 'Well we have heard a little bit about the defendant, how do we deal with that?' Well you have heard that he has the convictions, sometimes called bad character, and it is important that you should understand why you have this evidence and how you use it. You have heard about his bad character because it forms a background to the case and also because it may help you when you come to consider some of the evidence in the case, and in particular the evidence of the defendant. It is right perhaps that you should know a little bit about him when you consider questions of truthfulness and reliability. It may assist you to know when you come to consider the question of the allegation in particular of robbery in this case that he has two convictions for robbery in the past, but bear in mind that these are convictions in the past, the defence stress that they are seven and nine years earlier respectively, and you should not convict someone on the basis of their record, you should convict them on the basis of the evidence in this case if you are going to convict them, not -- you do not hang a dog by a bad name in this country. You understand what that means? Just because he has done something wrong in the past does not mean he has in this case so you can take it into account in deciding whether or not he committed this offence and in particular in deciding his truthfulness when he gives evidence but you will not convict him just because he has got previous convictions, you will use them in a fair way if at all and it is a matter for you to decide whether you should use them at all. As I say, conviction will be on the evidence in this case, the evidence of an identification, the evidence of the other factors and putting the evidence together."

[16]The submission made is that in that passage the judge failed to give the jury proper assistance as to how they could use the evidence of bad character. The evidence was adduced to show a propensity to rob, but the judge failed to convey this and instead directed the jury first that it was relevant to credibility and then failed to give any further guidance as to how it should be used. Our attention is drawn to the discussion in R v Campbell

[2007] EWCA Crim 1472

, [2007] 2 Cr App 361, in the headnote of which the effect of that lengthy judgment is summarised. The court emphasised the importance of telling the jury in simple language, and with reference where appropriate to the particular facts of the case, why the bad character may be relevant, and said that relevance could normally be deduced by the application of common sense. In general the court did not consider it helpful to tell the jury that they could take the evidence into account when deciding whether the defendant's evidence was truthful. In Campbell the judge had included such wording in his own direction following the then current Judicial Studies Board specimen direction. Whilst criticising his direction, the court concluded that in the particular circumstances of that case the terms of the summing-up can have had no impact on the safety of the verdict.

[17]It is true that in the present case the judge does not appear to have taken sufficiently on board the guidance in Campbell, although we are told that a copy of that judgment was provided to him. It was unhelpful to tell the jury that they could take the previous convictions into account in deciding the appellant's truthfulness. The judge did not give the jury the help to which they were entitled in relation to focusing on the possible relevance of the previous convictions, namely to the question whether the appellant had a tendency to commit offences of the kind with which he was charged on this occasion. We accept the submission that the direction was unsatisfactory.

[18]Nevertheless, we do not think that in this case the jury can have been seriously misled by the direction given by the judge. That direction emphasised that the jury must not convict the appellant on his record and that they must consider all the evidence in the case. It also emphasised the age of the previous convictions. The bearing that those convictions might have on the question of the appellant's guilt was a matter of common sense. There is no reason to believe that the jury may have placed impermissible reliance on them. Moreover, the jury note to which we turn next shows that the jury focused on the evidence relating specifically to the incidents on 17 and 18 July and provides additional reassurance that the inadequacy of the bad character direction did not have any impact on the safety of the conviction. We therefore reject this ground of appeal.

[19]That brings us to the final ground, on which the single judge refused leave but which is again renewed before us. It relates to the jury note already mentioned and the correctness of the judge's answer to it. Some two hours or more after they had retired the jury sent a note to the judge in these terms:

"All jurors are convinced that the victim of the robbery is 100% certain that the defendant was the man who robbed her. Some jurors are uncertain if the victim's identification is enough to say guilty on its own. But the coincidence of the car being in both places leads them to believe he is guilty. Is the coincidence of the car in both places, backed up by the belief in the victim's ID, enough to convict?" 20. "

'All jurors are convinced that the victim of the robbery is 100% certain that the defendant was the man who robbed her.' 21. That does not require any comment from me. The next part is this:

'Some jurors are uncertain if the victim's identification is enough to say "Guilty" on its own.' 22. Well, members of the jury, let me deal with that. The first thing that I have to remind you of is that the prosecution have to prove their case so that as soon as you are looking at guilty or not guilty you are looking at the evidence of course and remembering that the prosecution have to prove the case, and they have to prove the case so that you are satisfied so that you are sure, and that is plain English and does not need any further explanation from me, so enough to say '

Guilty', if you are satisfied on the evidence so that you then be that on evidence of identification or something else, if you are sure you are sure, and so, if you are not sure you are not sure, so that is the test that you have to apply and evidence of identification, notwithstanding the warning that I have given you, to which you should pay attention, can be sufficient to found a conviction and in some cases it does. In other cases it does not. The evidence in this case, or the issue rather, in this case, on each of the two counts is identification, so of course that is what you are going to be concerned with. There is no issue but that there was a robbery and there is no issue but that there was a car which somebody was driving on 18 July, the day after the robbery, and you may consider it is a very strong inference that the person driving the car who was fleeing from the police knew that they had a car that they were not entitled to drive because it was a stolen car. That is a matter for you to consider and the question is: who was the person in the car in relation to the robbery and who was the person in the car on the next day? 23. The next part of your question is this:

'But the coincidence of the car being in both places leads them to believe he is guilty.' 24. Well, remember, it is satisfied so that you are sure. '

Believe' is a slightly different word than that which is why I pointed out to you that subject to the burden and standard of proof identification might be sufficient on its own to lead to a conviction. If there is additional evidence, the coincidence of the car being in both places, that of course would amount to supporting evidence as you rightly say in your question, and obviously that even more so would be capable of amounting to evidence that would satisfy you so that you are sure and be sufficient for a conviction, but it is a matter for you to decide. 25. The last part is this:

'Is the coincidence of the car in both places backed up by the belief in the victim's ID enough to convict?' 26. Well the short answer is: '

Yes it is' but it is a matter for you. If you are satisfied so that you are sure that the defendant is guilty, then that is your verdict. If you are not satisfied your verdict is not guilty. 27. Does that assist you? I hope it does. If I have misunderstood your question or there is something else behind it that I have not followed, please send another note. If I have answered your query, as I hope I have, then, as I say, remember the warning about identification, remember that you are going to have to form decisions about whether the defendant was in the car both on 17 July and 18 July, but your questions as I understand them seem that you have that very much in mind and that is the question you are addressing."

[20]The judge's approach as is seems to us was less than ideal. It may be that he did not give the jury the full assistance they sought, although they were told to send another note if necessary and they did not do so. However, the crucial question is whether there were important omissions or errors in what the judge said.

[21]The central submission on the appellant's behalf is that, in response to the note, the judge erred in failing to repeat the full Turnbull direction that he had given the jury in his initial summing-up -- a direction about which in relation to its full form no complaint is made. At one point there was a further submission that the judge failed to give a sufficiently clear direction on the burden and standard of proof, but Mr Bunting, realistically and correctly, has not pursued that submission.

[22]So far as the Turnbull point is concerned, we do not accept that the judge fell into error as contended. The judge referred in terms to the warning he had given in relation to identification when summing up. He told the jury to pay full attention to it. Towards the end of the remarks we have quoted he repeated a reminder as to his warning about identification. It might have been better to emphasise the point in relation specifically to what the jury said about Mrs M's confidence in her identification of the appellant as the robber since it is that point, as Mr Bunting rightly submits, in relation to which the Turnbull direction was of particular importance. But we do not accept that it was necessary, even arguably, for the judge to repeat the full direction which he had previously given.

[23]Accordingly, the application for leave to appeal on the ground relating to the jury note is refused, and for the reasons we have given when dealing with the one ground on which leave to appeal was granted, namely the bad character direction, the appeal is dismissed. ________________________________