England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
Mr Recorder Blair
T20037027

		Royal Courts of Justice Strand, London, WC2A 2LL
		3 December 2004

Lord Justice Waller :

1. On the 5^th December 2003 in the Crown Court at Dorchester, before Mr Recorder Blair and a jury, the appellant was convicted of attempted kidnapping and sentenced to six years imprisonment. He appeals against conviction and sentence by leave of the single judge. The single judge refused permission to appeal on one point, and no application to renew was pursued by Mr Wright on behalf of the appellant. The appeal on conviction has concentrated on one aspect, that is to say the judge's direction on character, and if that direction can be criticised the question whether the conviction was safe.
2. At the conclusion of the hearing on 24^th November 2004 we dismissed the appeal against conviction with our reasons to be delivered later. We went on to hear the appeal against sentence. Counsel wished for further time to make written submissions, which we allowed, and indicated that we would announce our decision with reasons when giving those for dismissing the appeal against conviction. These are our reasons for dismissing the appeal against conviction and for allowing the appeal against sentence, reducing it from six years to four.

The Facts

3. It was not in issue that some incident occurred on the 26^th June 2003. The complainant's version, and thus the prosecution's version of that incident involved the appellant attacking the complainant, bundling her towards a fence, trying to push and lift her over and using a knife to reinforce his demands. The appellant's case was that he had knocked the backpack that the complainant was wearing with the wing mirror of his vehicle when he passed her on the road. He had come back to assist the complainant, who was crouching in the road looking at her backpack. On his evidence the complainant then became hysterical, believing he was trying to rob her. She then ran down the road in a state of panic.
4. Evidence was called by the appellant as to his character. Certain of that evidence came from written statements and certain of it was given orally. The appellant however also had a conviction for affray, for which he had been sentenced to 240 hours community service. That conviction was over five years old and was thus a spent conviction. Thus arises the issue on the way character should have been dealt with in the summing up.

Prosecution Evidence

5. The complainant gave evidence that she was half way up the hill on Walditch Road when she became aware of a vehicle passing her on her right hand side. A couple of minutes after she had seen the vehicle she reached the first entrance to a place named "The Hyde" and she could see that someone was walking into the road where the road veered into a sharp corner. The person, she had seen, disappeared and she could not make out who it was. When she reached the sharp corner she heard a metal clanking sound. The appellant appeared from behind the hedge on the opposite side of the road, came over the fence by the side of the road towards her, and she was shocked. The appellant looked straight at her and began forcibly to move her towards the fence.
6. She heard a sound and thought the appellant had a knife. She covered her face and neck with her hands while she struggled to get away from the appellant. She was terrified and screaming. The appellant told her to "shut up". She said "please take my bag and my wallet and anything in it", but the appellant told her to "shut up" again. The appellant dragged her to the fence and she thought the appellant then put the knife to her throat. At some point she dropped her mobile phone, which she had been carrying in her hand.
7. The appellant attempted to lift her over the fence by the belt loops in the back of her jeans. The rusty fence scraped against her ribs and her stomach was scratched by thorns. She could see undergrowth on the other side of the fence and she realised that if she went over the fence she would be out of sight. Determined not to let that happen she pushed back against the force applied by the appellant. She heard dogs barking and the appellant's grip loosened. She then ran towards the village. She was too scared to look back.
8. She heard "stop, come back, I'm sorry, I got the wrong person", which confused her. Other people then arrived on the scene and the appellant drove off. The complainant's backpack and her sunglasses, which she had been wearing, had been damaged. Her mobile phone was later handed back to her by the police who recovered it from the scene of the incident.
9. She was cross-examined. She said she was not confused about her evidence but she agreed that she was hysterical when she ran away from the appellant, but she did not agree that she had misconstrued the entire incident. She was not crouching in the road looking in her backpack and she did not remember the appellant putting his arm around her shoulder.
10. She could not be sure that there was a knife but her instincts told her there was a knife. She was sure she was going to be raped and killed that day. The omissions and inconsistencies in her two statements were put to her and she said that any omissions in her statement to the police were by mistake.
11. Dr. Jansen gave evidence. He had examined the complainant two days after the incident and found bruises on the complainant's left forearm consistent with finger having gripped the arm, and a straight line bruise under her rib cage which was consistent with her being positioned over a fence.
12. Christine Reece, a forensic scientist, gave evidence that she had found fibres from the complainant's top on the appellant's clothing.
13. The appellant's interview with the police gave an account which was broadly consistent with his evidence at the trial, although he did not mention in that interview that he had fled the scene in a panic because the complainant thought he was trying to rob her.

Defence Evidence

14. The appellant gave evidence that he totally disagreed with the complainant's description of events. He said the complainant was travelling on the same side of the road as him and he did not initially see her. He swerved to avoid her round a bend in the road, but as he passed her he heard a banging noise and he looked in his mirror and saw the complainant crouching in the road. He turned the vehicle's engine off and approached the complainant, who did not appear to see him coming. The complainant was looking down at her rucksack or mobile phone and he spoke to her but she did not look up. He asked the complainant if she was OK, and put his arm around her shoulders. She immediately pushed him into the road and said "take it". She was hysterical and obviously thought he was trying to rob her. The complainant then ran off down the road leaving her bag and mobile phone. He followed her but he was a good distance behind. The complainant was running but he was jogging. The complainant ran round the corner and he continued to run after her. Some passers-by appeared and, in a panic, he got into his vehicle and drove off.
15. In cross-examination he agreed that he had a Stanley knife in the vehicle that day, which made a noise when the blade was drawn. He denied taking the knife out of the vehicle or threatening the complainant with it. He also denied causing injuries to the complainant, found by Dr. Jensen.
16. The appellant put in character evidence. There was evidence read from Captain Murrow, who provided a reference when the appellant was leaving the army. That reference included high commendation and, for example, stated that the appellant was "an extremely smart and well-turned-out individual, a credit to both himself and the platoon". It confirmed his hard work and dedication to his duties, and hoped that although he had decided to leave the army he might change his mind and stated finally "a good year's work from this first-class soldier."
17. He called a neighbour, who gave evidence that the appellant was "a true gentlemen". She said that he loved his family and his daughter more than the world and that he was a wonderful family man whom she trusted and whom, even since these allegations had been made, she had trusted with her children.
18. Evidence was given by Mr Richard Meek, the appellant's employer, whose evidence was that "he has been exemplary, he is absolutely first-class", and stated that "We have strong beliefs and regards as a family ourselves and one of the things that has impressed us with [the appellant] is his commitment to the family. He is absolutely devoted to his daughter." He said that his family was "a Christian family" and that family very much believed in the sanctity of marriage and also in the value of the family, and how those standards were brought into his business and how his staff had to live up to those standards, which he said the appellant certainly did.
19. In putting the above evidence as to character in evidence, Mr Wright appreciated that he would also have to put in the appellant's previous conviction for affray and accordingly he did so. As we have indicated, that conviction was from some five years previous to the date of the incident and was thus a spent conviction.

The Summing Up

20. The judge's summing up is not criticised other than in the way in which he dealt with character. He did that in the following terms and we will set it out as it appears in the typed version we have:-

"Next I am going to come on to just a few comments about character evidence. You have heard that Steven Mentor is aged 28, he has a good record of working for nine years in the Army as an infantryman, and then for the past three years as a generator refuelling engineer.

You have heard from witnesses who speak about their impressions of his general reputation, how they find him as a person, and you have heard read out to you what was written about him in his discharge papers from the Army.

However, on the other side of the equation, he has on a criminal record a previous conviction which brought him before a Crown Court once before, an allegation of affray, it was five years ago, when he was ordered to do 240 hours of community service. If it is a mystery to you what it means, an affray is an offence involving the threat of use of unlawful violence such that someone present at the scene would fear for their personal safety. You will remember he told you he pleaded guilty to that offence; he admitted that offence.

Of course just because he has a previous conviction does not mean he is guilty of this offence now. That would be quite an unfair conclusion to draw. And nor indeed are you permitted to conclude form the fact that he has a previous conviction that he is more likely to be guilty of this offence. The only possible relevance of that previous conviction may be to assist you when you come to assess the truthfulness of his evidence, whether you believe him or not. But it is only one factor and you do not have to take it into account.

You have only heard about it because the defence wanted at the same time to lay before you other positive material that might affect your view of his character and his trustworthiness that might assist you to believe him, and it is entirely therefore a matter for you now to decide how much weight that you should give to those factors in this case.

21. It is right also to say that when he came to deal with the evidence the Recorder fairly summarised the character evidence in the following terms:-

"And then there were those Army discharge papers which gave a glowing reference for Mr Mentor when he came to the end of his Army service and their desire for him to change his mind and stay working in the Army as a driver.

Cheryl Chalkley, a friend and neighbour for nearly three years, trusts him with her children and with a door key, and explained how he is a good family man.

Nigel Turby's statement was read to you, a workmate, who described him in glowing terms and would trust him in the role of a colleague and friend.

And Richard Meek then, his boss effectively, together with Mrs Meek and their son who you heard earlier, they are the partners of the firm he worked for, and again he spoke highly of Mr Mentor."

22. When the single judge gave leave he said that he could not see how the plea of guilty to affray could assist the jury on credibility. Put as starkly as that there appears to be force in the point, but we doubt whether that is how it appeared to the jury, but we will come back to that.
23. On any view this was a case in which some thought would have to be given as to the form of character direction. It is in such circumstances that it should almost invariably be the rule that there should be discussion between counsel and the court as to the form the direction should take. Primarily the duty is on the court to raise the matter with counsel, but it is also fair to say that if the defence, as here, and as they have argued in this court, were to seek to persuade the judge to give the full two-part good character direction despite a conviction, some onus lies on them to raise the matter with the Recorder and seek to persuade him that he should do that.
24. Before us both counsel recognised that the form of any direction on character in this case was within the discretion of the judge. But Mr Jeremy Wright, who appeared for the appellant both here and below, submitted that this was a case where it would have been wrong in the exercise of that discretion not to direct the jury first that they should ignore the conviction for affray completely, and secondly not to have directed the jury on that basis that they should consider the appellant to be a man of good character and then give both limbs of the good character direction, that is to say that his good character "supports his credibility" and in the second place shows him to be a person who "is less likely than otherwise might be the case to commit this crime now."
25. Mr Halliwell, on the other hand, who appeared for the prosecution both here and below, submits that the appellant was not of good character and thus had no right to a good character direction. He submits that the Recorder's summing-up was absolutely fair in that it informed the jury first of the good aspects of the appellant's character by reference to his record in the Army and what witnesses said of him; balanced that by reference to his one conviction of five years ago, which involved the threat or use of unlawful violence; made clear that they should not conclude from the fact that he had that previous conviction that he was more likely to be guilty of this offence; and then, in the context of saying the conviction went to the question whether they believed him or not, made clear what he meant by that in the words "you have only heard about it because the defence wanted at the same time to lay before other positive material that might affect your view of his character and his trustworthiness that might assist you to believe him, and it is entirely therefore a matter for you to decide how much weight you should give to those factors in this case."
26. In making their respective submissions, both counsel referred us to certain well-known authorities. The starting point is R v Nye (1982) 75 CAR 247. That authority is concerned with how spent convictions should be dealt with. In that context, Talbot J who gave the judgment of the court said:-

"Mr Griggs submission upon this first ground of appeal is that the effect of the Rehabilitation of Offenders Act 1974 and the spirit of the Act demand that when a man who has previously been convicted has reached the stage when the conviction or convictions are spent, then he should as of right be entitled to present himself as a man of good character and to claim such if he comes again to be tried for some offence. We do not accept that submission. The Act quite plainly from the sections to which we have referred excludes the provisions which prevent reference to people's convictions in criminal proceedings. In our view, when this question arises, it is entirely a question for the discretion of the judge. It may well be that the past spent conviction, as was instanced in argument, happened when the defendant being tried was a juvenile, for instance, for stealing apples, a conviction of many years before. In those circumstances quite plainly a trial judge would rule that such a person ought to be permitted to present himself as a man of good character. At the other end of the scale, if a defendant is a man who has been convicted, shall we say of some offence of violence, and his conviction has only just been spent, and the offence for which he is then standing in trial involves some violence, then it would be plain, you would think, that a trial judge would rule that it would not be right for such a person to present himself as a man of good character. The essence of this matter is that the jury must not be misled and no lie must be told to them about this matter. The exercise of discretion of the trial judge of cases which will fall in between the two extremes to which I have referred must be carried out having regard to the 1974 Act and to the Practice Direction. It should be exercised, so far as it can be, favourably towards the accused person."

27. It is this passage on which Mr Halliwell placed great reliance. He pointed out that the offence with which the appellant was charged in this case was an offence involving violence, and pointed out that the conviction for affray was an offence involving violence. It was only just spent at the time when the index offence occurred and thus he submitted it fell squarely within the above dictum.
28. Mr Wright sought to gain assistance from other authorities. First he drew attention to the R v Vye Wise Stephenson (1993) 97 CR.APP.R. 134. That authority laid down the clear obligation on a judge to give both the first and second limb character direction in all cases where a defendant was of good character. He drew our attention to the approval of that authority by the House of Lords in R v Aziz [1995] 2 CR.APP.R. 478. He also drew our attention to a dictum of Kennedy LJ, in R v Fulcher [1995] 2 CR.App.R. 251 at 260, where it was said by the judge:-

"In the light of the authorities we must accept that a proper direction as to character has some value, and therefore is capable of having some effect in every case in which it is appropriate for such a direction to be given."

29. The assistance Mr Wright gets from those authorities is simply that, if the appellant was entitled to a good character direction, including one or both limbs, then he was entitled to have a clear direction by the judge with both limbs emphasised. Clearly Mr Wright is correct in saying that the judge did not give such a direction in this case. Those authorities do not however help in solving the critical question as to whether the appellant was entitled to such a direction.
30. Of more relevance to this latter point was the further authority of R v Durbin [1995] 2CR.App.R. 84, which reviewed authorities where a defendant's character is mixed. It sought to summarise the law in that area. In Durbin at 89, for example, there is reference to an unreported decision of Herrox unreported October 5 1993. In that case the defendant faced charges of rape and indecent assault. He had a previous conviction for having an offensive weapon, an airgun, when going to recover some money some twelve years before. The jury had been told by the trial judge that it was "completely irrelevant so far as your consideration of the facts in this case, the case of our concern", but omitted both limbs of the good character direction. The Lord Chief Justice held that where the defendant is not of "absolutely good character" the trial judge has a discretion as to whether or not he gives the directions as to good character, but that in a case where he had in fact regarded the previous conviction as completely irrelevant, and in any event "ought to have regarded him as a man of good character", he was wrong not to have done so.
31. In Durbin itself, the conclusion so far as the law in this area was concerned and so far as it is relevant to this appeal, was as follows:-

"Where the defendant is not of absolutely good character, the trial judge has discretion as to whether or not to give a "good character" direction, and if so in what terms, but he cannot properly decide not to do so, and in unqualified terms, if the blemishes can only be regarded as irrelevant, or of no significance, in relation to the offence charged."

32. At one time Mr Halliwell was inclined to argue that in that last conclusion the reference to blemishes related to matters other than previous convictions, but having regard to the fact that Herrox is relied on in support of the above conclusion, that submission cannot be maintained.
33. There is, I think, one other reference to which we should draw attention, albeit neither counsel referred it to us during the argument. In the 2004 edition of Archbold at para 4-410, under the heading "Bad Character", the paragraph commences as follows:-

"Where the defendant has given evidence, the jury should be told that his bad character, if in evidence, goes solely to his credibility and not as to whether he is likely to have committed the offence; R v Prince [1990] CRIM.L.R. 49, CA."

34. We suggest that one of the difficulties in this area is that, although there clearly are two separate matters to which a character direction goes, i.e. credibility and propensity, the truth is, at the end of the day, both matters go to whether the jury "believe" the defendant's evidence or "believe" the complainant's evidence. So in one sense both limbs actually go to "credibility" in a broad sense.
35. It seems to us that the first question is whether the Recorder in this case regarded the conviction for an affray as totally irrelevant, or whether he reasonably should have regarded the conviction for the affray as totally irrelevant. If he did, or should have done, then the appellant was entitled to a full good character direction with both limbs. If it was not regarded as irrelevant, then the direction as to good character was within the discretion of the Recorder. It would of course need to be balanced and fair.
36. It seems to us that the Recorder did not regard the conviction for an affray as totally irrelevant. It furthermore seems to us that he was correct in not so regarding it. First the affray was an offence of violence and it was only just spent. Second, if was to be treated as irrelevant, the Recorder would need to know the details. He was never informed of those and thus no submission was or could have been made to the effect that the details were such as to make the offence irrelevant. It was thus absolutely proper first that that offence should be referred to in evidence as a counterbalance to the evidence of good character. The only question that then remained was what direction in the Recorder's discretion should be given.
37. The Recorder cannot be criticised for directing the jury as he did that the previous conviction did not mean he was guilty of this offence, and cannot be criticised for emphasising as he did that the jury were not permitted to conclude from the fact that he had the previous conviction that he was more likely to be guilty of this offence. What then was its relevance?
38. The answer seems to us to be as follows. Evidence was being given on the appellant's behalf as to his good character, even in terms of not being a violent man, and being truthful. The jury were entitled in considering whether they accepted the evidence of the complainant or accepted the evidence of the appellant to know that, although that good character evidence was now being given, there had been an occasion in the past when the appellant had acted violently and in a way which did not live up to the glowing reports now being given.
39. It seems to us that if one reads the direction that the Recorder gave without the break which appears in our typed version, it would be heard by the jury in the following words:-

"The only possible relevance of that previous conviction may be to assist you when you come to assess the truthfulness of his evidence, whether you believe him or not, but it is only one factor and you do not have to take it into account. You have only heard about it because the defence wanted at the same time to lay before you other positive material that might affect your view of his character and his trustworthiness that might assist you to believe him, and it is entirely a matter for you how to decide how much weight to give to those factors in this case."

40. It is, we suggest, unfair to say that what the Recorder was there saying was that "a plea of guilty to an offence of affray could assist the Jury on the credibility". He is in fact saying that in considering whether you accept the appellant's evidence, you must balance the good character evidence you have heard against the one conviction that he has. In our view that was an absolutely proper direction in this case.
41. Furthermore, we can take comfort from the fact, and this is no criticism of Mr Wright, that at the end of the summing-up it did not occur to him that there was any misdirection so far as character was concerned.
42. We would in any event add the following. First, as Mr Wright very properly acknowledged, a criticism of the Recorder for not giving the second limb of a good character direction – the propensity direction – was difficult to sustain, even on Mr Wright's strongest arguments. That would leave Mr Wright making a criticism simply on the basis that the Recorder did not expressly say that the evidence of good character "supports his credibility; this means it is a factor which you should take into account when deciding whether you believe his evidence." But in a case such as this, where positive good character evidence is called, and where it is stressed in the summing-up, it must be obvious that it goes to the question whether the jury believe the appellant's evidence. Thus, on any view, that would have been a less serious blemish than might be so in other cases.
43. Second, even if it could be said there was the blemish to which we have referred, we have no doubt that the conviction in this case was safe. The blemish, as we have said, would be minor, and this was a case in which there were two totally different stories as to an incident that had taken place on that afternoon. There was powerful evidence which supported the complainant's version of what took place. For example, there was evidence of a disturbance in the vegetation where she said the appellant came from; her mobile phone was found on the verge; the doctor's evidence as to her injuries, i.e. finger marks on her arms and a straight line bruise on her stomach, was consistent with her version of events; there were further marks on her loins consistent with her having been pulled up by her jeans as she had suggested; the rucksack was torn and damaged and that was consistent with a struggle; the appellant sped away from the scene and then made no mention, of what on his version was an entirely innocent but quite dramatic incident, to his wife when he got home.
44. It was for the above reasons that we dismissed the appeal against conviction.

Sentence

45. As regards the sentence of six years, we allowed Mr Wright an opportunity to direct our attention to further authorities, and in particular to those relating to sentences for attempted rape. What we had in mind was that attempted rape was not the charge against this appellant, and Mr Wright may gain some assistance in his argument that six years was manifestly excessive in this case, by reference to such authorities.
46. In a written note he has directed our attention to two authorities involving sentences for attempted rape, R v Williams (1987) 9CR.App.R (S)491 and R v Humphreys (1990) 12 CR. APP. R (S) 339. In Williams the defendant had grabbed the young woman who was walking home in the early hours of the morning, pushed her into an alley and down the bank, interfered with her clothing and lain on top of her. Three passers-by intervened and apprehended the defendant. He pleaded guilty to attempted rape, was sentenced to six years, but that sentence on appeal was reduced to four.
47. In Humphrey the defendant approached a woman who was walking home from work late at night, threw her to the ground, removed some of her clothing and tried to force her legs apart before indecently assaulting her. He then gave up and ran away when a car approached. He was convicted of attempted rape, was sentenced to six years imprisonment and that sentence was reduced to five on the basis that the guide lines in Billam and Ors (1986) 8 CR.APP R (S) 48 indicated that the starting point for attempted rape would be less than for the complete offence, and that thus this sentence was out of line with those guidelines.
48. Mr Wright submits that since the appellant in this case was not charged with attempted rape those cases would not provide the indicator to the appropriate sentence. He refers us to authorities where the charge was kidnapping, albeit with a sexual motive. He suggests that R v Smith (1990) 12 CR.APP.R. (S) 270 and R v Lloyd (1993) 15 CR.APP.R.(S) 660 are the most nearly similar cases, although he very properly referred us to the spectrum of similar cases ranging in Thomas in Current Sentencing Practice from R v Lashley B3-43A04 to West [AG's ref] B3-42A14.
49. Smith was a case in which the defendant had forced his way into a car driven by a woman with a young daughter. He threatened the woman with a knife and held her by the hair and coat to restrain her. The incident lasted only a short time and the woman managed to escape. The defendant pleaded guilty and was sentenced to four years, but that sentence was reduced to thirty months. Lloyd was a case in which the defendant began to follow a young woman who was walking from work. He overtook her, took hold of her arm, told her that he had a knife and pulled her towards some trees. After a number of struggles, she managed to get away. The defendant was arrested the next day and claimed that he simply wanted to chat to the victim. He was convicted of false imprisonment and sentenced to two years, and that sentence was upheld by the Court of Appeal.
50. We accept Mr Wright's submission that the sentence to be imposed in this case should be below that which would have been imposed if the charge had been attempted rape. We do not however accept the submission that the cases of Smith or Lloyd are necessarily the best examples of "nearly similar cases". The case of Lashley (1988) 10 CR.APP.R. (S) 396 is an example certainly of a worse case than the present, but is of some assistance. The defendant in that case attacked a woman as she got out of a car near her flat, dragged her to a wooded area and sat astride her. He fled when he heard a noise and was arrested by a member of the public. He admitted that his motive was sex but no sexual assault took place. He pleaded guilty and was originally sentenced to six years imprisonment for kidnapping, with eighteen months consecutive for theft. In reducing the sentence for kidnapping from six years to four, Mann LJ who gave the judgment of the court said this:-

"The terror which was inflicted upon the victim of the kidnapping cannot be overestimated. That being said, no sexual activity occurred and the charge was not one of attempted rape. The charge was one of kidnapping, a kidnapping which was transient. This court has asked itself what the appropriate sentence would have been had rape occurred, or had the charge been of attempted rape. Having asked itself those questions, the court is of the view that on the first indictment the appropriate sentence would be one of four years imprisonment."

51. In the instant case the appellant has not admitted that his motive was sexual, but the judge heard all the evidence in the case and was entitled to find that that must have been his motive. This is a case in which there was no plea, and the experience of the victim must have been utterly terrifying, but, adopting the approach of Mann LJ, we have asked ourselves what the sentence would have been if there had been a rape, or an attempted rape, and no plea of guilty. Having tested the matter in that way our conclusion is that four years was the appropriate sentence in this case. That being so, we also conclude that the sentence of six years was manifestly excessive and the sentence must be reduced to one of four years. To that extent the appeal against sentence must be allowed.