Phillips v R. [2011] EWCA Crim 2935

“Mr Phillip’s defence is that he was not aware of any fraud being perpetrated. If there was, it was being run by others which must include Mr Scragg. Mr Scragg’s defence is that he was not aware of any fraud being perpetrated. If there was, it was being done by another. By inference, that would point towards Mr Phillips.”

“2. A major reason for the length of the trial was the introduction of bad character evidence admitted pursuant to the Criminal Justice Act 2003 (hereafter "the CJA 2003") concerning three other allegations of rape, two of which related to events that occurred 22 and 17 years before the indicted charges. The first of these allegations, by RL, resulted in an acquittal, the second, by JD, in a conviction, and the third, by LB, was stayed on the ground of abuse of process. If ever there is a case to illustrate the dangers of satellite litigation through the introduction of bad character evidence this is it.”

“12. Where past events are disputed the judge must take care not to permit the trial unreasonably to be diverted into an investigation of matters not charged on the indictment.”

“22. In formulating those criteria the court referred to convictions, because the evidence of bad character in the cases which it was considering consisted of convictions which fell within s103(2). Where the prosecution seeks to prove propensity to commit offences by evidence other than previous convictions, the application of those criteria may in the nature of things present particular difficulties, and the judge may also have to consider whether the admission of the evidence would result in the trial becoming unnecessarily and undesirably complex even if not unfair. 23. In the first place, where there has been a conviction, it follows that the defendant's guilt must have been established either by his own admission or by evidence which satisfied the court to the requisite standard after a criminal investigation and trial. Section 103(2) enables evidence of the conviction to be given as evidence of guilt and thus of propensity to commit offences of such a kind (subject to the other provisions of the Act). In short, the conviction operates as launch pad for establishing propensity. Without such a launch pad, proof of the previous alleged misconduct requires the trial of a collateral or satellite issue as part of the trial of the defendant for the offence with which he is charged. Trials of collateral issues have the dangers not only of adding to the length and cost of the trial, but of complicating the issues which the jury has to decide and taking the focus away from the most important issue or issues.”

“101(1) In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if- ... (e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant.”

“112(1) In this Chapter- ... “important matter” means a matter of substantial importance in the context of the case as a whole...”

“104(1) Evidence which is relevant to the question whether the defendant has a propensity to be untruthful is admissible on that basis under section 101(1)(e) only if the nature or conduct of his defence is such as to undermine the co-defendant’s defence.”

“109(1) Subject to subsection (2), a reference in this Chapter to the relevance or probative value of evidence is a reference to its relevance or probative value on the assumption that it is true. (2) In assessing the relevance or probative value of an item of evidence for any purpose of this Chapter, a court need not assume that the evidence is true if it appears, on the basis of any material before the court (including any evidence it decides to hear on the matter), that no court or jury could reasonably find it to be true.”

“A judge ruling on a point of admissibility involving an issue of relevance has to decide whether the evidence is capable of increasing or diminishing the probability of the existence of a fact in issue.”

“14.41 In common with our other recommendations, if a defendant wishes to adduce evidence about another defendant which goes outside the central set of facts then the leave of the court must be obtained. 14.42 Consistent with our recommendations in respect of adducing evidence of the defendant's character by the prosecution, or of a non defendant's character by any party, such leave will only be given if the evidence is of substantial probative value to an issue between the defendants, which issue is itself of substantial importance in the context of the case as a whole. 14.43 This recommendation mirrors our other recommendations in respect of evidence sought to be adduced about bad character evidence outside the central set of facts. The enhanced relevance test is designed to prevent evidence of bad character extraneous to the events in question being admitted where it is of only minimal relevance to a central issue, or where the issue to which it is relevant is itself marginal to the case. 14.44 In this way the court will require each defendant who wishes to attack the character of a co-defendant, by drawing attention to character evidence which is extraneous to the central set of facts, specifically to justify its introduction. In so doing we aim to avoid material of great potential prejudice to another defendant being placed before the fact-finders for no reason other than that it may be of some marginal relevance, or relevant to some marginal issue or, as at present, because a defendant has been unwise enough to step across a line in the evidence given against that co-defendant. 14.45 If, however, the material does satisfy the test of enhanced relevance, then, because the defendant has the right to have his or her case presented, there is a right to have it adduced. There is no exclusionary discretion, such as we propose in the case of the prosecution seeking to introduce evidence of the defendant's bad character, requiring the court to have regard to the prejudicial impact of the evidence. 14.46 Where, however, the issue between D1 and D2 is whether D1 has a propensity to be untruthful, leave may only be given if, in addition to the other requirements, the nature or the conduct of D1's defence is such as to undermine D2's defence.”

“45...In the context of section 100 of the 2003 Act, we think that the word "substantial" must mean that the evidence concerned has something more than trivial probativevalue but it is not necessarily of conclusive probativevalue.”

“52. We do not think that it is possible to identify a power to exclude evidence which, ex hypothesi, has substantial probative value, in reliance on Article 6. The question whether such a power exists only arises in circumstances where the court has already concluded that the evidence of the defendant's bad character does have substantial probative value in relation to a matter of substantial importance in the context of the case as a whole. Once substantial probative value has been established it is difficult to envisage circumstances where it would be unfair to admit evidence of that quality, subject to the procedural protection contained in the Rules. That is reflected in the structure of the section itself which excludes from the scope of section 101(3) evidence of substantial probative value in relation to an important matter. In short, it is difficult to envisage room for invoking the right to a fair trial enshrined in Article 6. Once the judge concluded that the evidence was of substantial probative value, he had no power, absent the application of the rules made under section 111, to exclude the evidence on the basis that to admit it would be to infringe Chaudry's right to a fair trial under Article 6. The only apparent control on the deployment of evidence by one defendant against another is that which is contained in section 101(1)(e). Admissibility rests solely on the court's assessment of the probative quality of that evidence. 53. We conclude that the judge erred in purporting to exercise a power to exclude evidence which reached the standard imposed by section 101(1)(e) for admissibility. Admissibility under that sub-section depends solely on the quality of the evidence. The judge had no power under that section to exclude the evidence on the grounds of unfairness.”

“56. Notwithstanding the absence of any such specific provision within section 111, we take the view that the rules made under section 111, in relation to bad character evidence, do confer power on a court to exclude such evidence in circumstances where there has been a breach of a prescribed requirement. The appellant was under an obligation to give notice of the evidence he wished to give of the confession or of his intention to cross-examine Chaudry about it not more than 14 days after the prosecutor had complied with his primary disclosure obligation (see rule 35.5 of the 2005 Rules). The judge concluded that his failure to do so was not due to an oversight but because of a deliberate intention to ambush his co-defendant. There was no other explanation for not raising the issue earlier. In our judgment the judge was entitled to exclude that evidence in circumstances where he concluded that the appellant had deliberately manipulated the trial process so as to give his co-defendant no opportunity of dealing properly with the allegation. 57. We recognise that Part 35 contains no express provision for dealing with a sanction for failure to comply. It merely confers power upon the court to shorten the time limit or to extend it (see rule 35.8). But it must be recalled that section 111(6) provides:- "Nothing in this section prejudices the generality of any enactment conferring power to make rules of court; and no particular provision of this section prejudices any general provision of it." 58. The power to make the rules contained in the 2005 Rules is conferred by section 69 of the Courts Act 2003. By section 69(4):- "Any power to make…criminal procedure rules is to be exercised with a view to securing that – (a) the criminal justice system is accessible, fair and efficient…" In furtherance of that objective, Rule 1.1 provides:- "(1) The overriding objective of this new code is that criminal cases be dealt with justly. (2) Dealing with a criminal justly includes - (c) recognising the rights of a defendant, particularly those under article 6 of the European Convention on Human Rights." Rule 1.2(1) provides:- "Each participant, in the conduct of each case, must – (a) conduct the case in accordance with the overriding objective." The court is required to further the overriding objective in interpreting any rule (see 1.3). 59. In our view it is not possible to see how the overriding objective can be achieved if a court has no power to prevent a deliberate manipulation of the rules by refusing to admit evidence which it is sought to adduce in deliberate breach of those rules. 60. We emphasise that cases in which a breach of the procedural rules will entitle a court to exclude evidence of substantial probative valuewill be rare. A court should be most reluctant to exclude evidence of that quality by reason of a breach of the procedural code. Nonetheless, there will be cases, of which the instant appeal is an example, where the only way in which the court can ensure fairness is by excluding evidence, even when it reaches the quality described in section 101(1)(e). It should be remembered that the court was compelled to assume the truth of the evidence that Chaudry confessed to murder. Section 109 gives rise to a stark choice between either an assumption that the evidence is true or rejection of its truth on the grounds that no court or jury could reasonably find it to be true. But in reality, as the judge himself remarked in his ruling, there will be evidence which, although capable of belief, is improbable and unlikely to be believed. Whilst the judge is compelled to assume the truth of such evidence for the purposes of section 101(1)(e), he need not take so extreme a view when considering whether to prevent the unfair effect of a breach of the procedural rules by excluding the evidence. The more credible the evidence, the less likely it is that the judge will exclude it on grounds of a breach of a procedural requirement. But where, as in the instant case, the evidence is improbable, the judge is entitled to take that factor into account in deciding whether to exclude it, in circumstances where the rules have been deliberately breached. 61. We acknowledge that one remedy which the judge ought to consider is whether to discharge the jury so as to give the co-defendant a proper opportunity of dealing with the new allegation advanced without any notice. But in many cases, and certainly in this appeal, to discharge the jury in such circumstances would be wrong. It would be unfair to the prosecution and might be a great unfairness to a co-defendant whose case might be faring rather better than that of the defendant seeking to adduce the surprise evidence at the last minute. Indeed, to discharge the jury at that stage may be to give the defendant manipulating the rules the very thing he is seeking to achieve. 62. We conclude that the requirements of a fair trial for all defendants, enshrined in Article 6, are met by the proper application of the 2005 Rules, contained within Part 35 and Part 1.”

“Even if given time, it is very difficult to see how Mr Scragg could defend himself within the context of the present trial properly against those other allegations. There would, in short, be another fraud trial going on as between Mr Scragg and Mr Phillips. I have to consider what effect this would have on this trial. It is submitted on behalf of Mr Phillips, as I shall come to, ... could be dealt with in a day and a half, or something of that nature. No doubt if everything was agreed, it may be that one and a half days would be sufficient to read out admissions and look at documents...but...they are not agreed and...it’s not simply the length of time these matters would take, it’s whether or not they would make a complex case yet more complex for the jury, who already have to consider the trading of a number of companies and five defendants over a period of nearly five years. If the issues raised in the application were to be fairly decided by the jury, both sides...should be free to call whatever necessary relevant evidence. Quite apart from it being an extremely difficult job for the jury to understand...all of these obvious practical difficulties simply reflect that the bad character provisions...must be applied so as avoid...two fraud trials being run concurrently, one between the prosecution and the five defendants and one between two defendants.”

“Now I am quite satisfied that if that evidence was to be admitted in front of this jury, ... this trial would not only become over-complicated, it would become wholly unmanageable. It would be impossible for a jury to properly determine the context of this case, what another jury will have to grapple with over some months next year. I am quite satisfied that the reality is that if I were to admit Raiment 1 and 2 and the earlier fraud or frauds, there would be three, arguably four, other frauds all being before the jury, for them to try and get to grips with. It would be impossible and, in my judgment, would be considerably more complex than the situation which, for example, the Court of Appeal made very clear in O’Dowd ... should not be permitted.”

“56. This was not a case like McKenzie[2008] EWCA Crim 758, in which the allegations of prior misconduct had never been investigated by the police and the incidents had not been drawn to the defendant's attention at the time they were said to have happened. What was said in that case about the difficulties is, however, relevant. Delivering the judgment of this court, Toulson LJ referred to three potential difficulties that need to be considered in such cases. The first is the need to consider whether admission of such evidence would result in the trial "becoming unnecessarily an undesirably complex even if not unfair": [2008] EWCA Crim 758 at [22]. The second is the danger of a trial of collateral issues not only adding to the length and cost of the trial but "complicating the issues which the jury has to decide and taking the focus away from the most important issue or issues"(ibid at [23]). The third is what the court described as the dilemma that "…if allegations of previous misconduct are few in number, they may well fail to show propensity even if they are true, but the greater the plethora of collateral allegations, the greater the risk of the trial losing its proper focus": (ibid at [22-24]).”

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